Extracts of Briefs, Edited Video Transcripts

College of Physicians and Surgeons of Nova Scotia  [Edited Video]

Dr. Douglas (Gus) Grant:   . . The next question is perhaps the most contentious, and that is what are the responsibilities of professionals or physicians conflicted by conscience, and by whom should these responsibilities be mandated. We have a history to confront. I refer to our country's experience with abortion and access to contraception where conscientiously objecting physicians faced and continue to face the same question. On many occasions, whether through silence or obfuscation, physicians chose and continue to choose not to assist women to access  a legal and medical service that runs counter to their personal beliefs. I respectfully disagree with the submission of Dr. Jeffrey Blackmer to this committee  of the CMA. As a regulator, I submit it is naive to think that access to physician assisted death will not be an issue whether for reasons of conscience or geography.

The provincial colleges are not in unanimous agreement on the question of conscience and whereas it's unfortunate that there is not a unified pan-Canadian approach, this alone should not invite federal legislation. The professional and ethical obligations of a physician in this difficult situation are clearly within the objects of provincial legislation. The colleges, through FMRAC, should work toward consistency, both to establish the physician's obligations and to establish the disciplinary consequences that might flow from a breach of those obligations. . .

Hon. Serge Joyal:  We had on Monday a representative from the College of Family Physicians of Canada, Dr. Francine Lemire. You might know her.

She answered very specific questions to the obligation of a doctor to provide for a referee when the doctor has a conscientious objection to provide the service, the right that we now have to satisfy according to the Supreme Court decision.

What is the position of the college in relation to that? Do you share the views of Dr. Lemire that a doctor cannot abandon his or her patient and say to look into the Yellow Pages or dial on your computer to find a doctor? What would be the position of a physician, according to you, who will want to exercise his or her right of conscientious objection in relation to informing the patient where to address to get that service?

Dr. Douglas (Gus) Grant: Well, I would first say that there's absolute unanimity across the country that physicians cannot abandon their patient. So the conscientious-objecting physician cannot simply abandon the patient. They must continue to provide care to that patient. All colleges agree with that.

The difference amongst the colleges is whether there exists a positive obligation to make an effective referral or whether they contemplate indirect referrals through another agency, whether it be the physician making the indirect referral or providing information to the patient and ensuring that the patient has the necessary knowledge. That's the range of options.

And I think we can learn from the Benelux countries' experience that over time, as a network of willing physicians becomes known, the issue of access goes down. Our college's view - and I should say it dovetails with the question from, I believe it's honourable member Cooper -  we saw it in our standard simply to operationalize what we thought Carter was saying. We weren't trying to make new law or expand on it. We just wanted to operate.

So Carter doesn't give us clear direction there. I think this is essentially a medical thing, and I think the colleges need to get a harmonized approach to it. Our approach in Nova Scotia, as we were essentially treading water after Carter, was that we recommended an effective referral, but we mandated, for the physician who could not see his or her way clear to making an effective referral, that an indirect referral be achieved by providing the patient information.

There's some variety across the country amongst the colleges. . .

Mr. Harold Albrecht:  . . . Just briefly, I'll try to be respectful of your time.

Just a little confusion on the issue of conscience protection. And you did reference Carter. It's quite clear in paragraph 132, “In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying.” I think there would be disagreement among professionals, legal and otherwise, as to what that actually means. Does it include active referral? Does it even include passive referral? And I don't want to get into that argument right now, but I think there is room for debate around the definition.

One of my concerns is that as we approach the issues of conscience, that it's paramount, I think this committee is charged with the very simple obligation to ensure that physicians have conscience protection, and I would go so far as to say, including not to refer. There's no other jurisdiction that has legalized physician-assisted suicide or euthanasia that imposes any compelling of medical doctors to refer.

So I guess, I want to ensure that our world view, as doctors or whatever other practice we're in, is not compromised by a set of external forces that force us to go against our conscience. In fact, I would be concerned that, in the issue and the situation with medical doctors who are compelled to go against their conscience, could there not be a serious implication of possible post-traumatic stress syndrome or other psychic issues with which those physicians might have to deal?

That's a very existential question. But a more practical one, if the regulations are allowed to be developed on province-by-province case, is it not possible that a physician practising in Nova Scotia, where the regime is more mandatory, could move, for example, to New Brunswick, or some other province where there's a more lenient and what I would call a more "open" regime in terms of allowing physicians to actually practise according to their conscience in all spheres of medicine?

Dr. Douglas (Gus) Grant: I think I followed most of the questions there.

All would agree that it's an open question. Clearly the tidiest mechanism to close the question is for legislation to define what "assistance" means. The inconsistency between the colleges was generated by the colleges all independently waiting for federal direction, trying to interpret how, trying to figure out how best to interpret Carter without specific direction, and quite frankly, without terribly clear legal authority. I think it remains entirely available for the colleges to come up with a harmonized approach that would follow the lead of whatever legislation is directed.

Again, I'll repeat, I worry terribly about two things: that legislation  intrude on the nature of the patient-doctor relationship, and I would again say with - sadness - that we have to confront, as a profession, the manner by which we dealt with access to abortion and contraception when it was a legal right. . . .

Hon. Serge Joyal:  In relation to the role of the College of Physicians and Surgeons of Nova Scotia, when you conduct inquiries in relation to professional negligence, what makes the distinction between professional negligence, that in some cases might be very important in terms of consequences for the bodily integrity of the person, and a Criminal Code offence?

Dr. Douglas (Gus) Grant:  . . . With respect to the discussion you were having with Mr. Russomanno, I would worry that the contemplation of a hybrid-type offence, a watered-down criminal charge would have the effect of chilling physicians from providing this service. That it might act as a deterrent to consider getting into this realm of practice.

The colleges often deal with complaints and conduct investigations that may overlap with the criminal sphere. There are times when there are positively articulated obligations of the college. If, for instance, if we see anything that involves sexual abuse of a minor, we immediately, perforce of statute, involve law enforcement. So we would need clear direction about the Criminal Code provisions and we would adhere to them.

. . . I can't speak for most of the colleges but I can tell you that in Nova Scotia we have an effective, close working relationship with law enforcement. We, if there's a matter that seems on its face potentially criminal, if we have reasonable grounds to suspect there's criminal activity, we make a determination based on the immediate public safety, which may involve suspending a doctor's licence on an interim basis, informing the crown, and then waiting for the crown to conduct a criminal investigation. The parts work fairly smoothly.

Hon. Serge Joyal:  Soyou have the experience of that kind of co-operation.

Dr. Douglas (Gus) Grant:  Sadly, sir, yes.

Hon. Serge Joyal:  Well, of course, nobody would want to see that happening.

• See also responses during the presentation of the Criminal Lawyers' Association.

Congress of Union Retirees of Canada [Full text]

. . . only willing physicians will be permitted to offer physician-assisted dying to appropriate competent adult patients who have made the choice to die without pressure from others.

Congress of Union Retirees of Canada: Hamilton-Burlington-Oakville [Full text]

CURC's resolution [see attached] proposes that only willing physicians will be permitted to offer physician-assisted death to appropriate competent adults. This issue is currently being discussed and debated within the medical profession. A number of physicians have openly objected to provide physician-assisted dying and will also refuse to refer patients to those who will provide physician-assisted dying based upon their religious or moral values. Yun Jen, President, Quebec Medical Association in a recent letter to the Globe and Mail [Wednesday Feb.3, 2016] states:

 "I am concerned that some doctors think that their professional freedom gives them the right to abandon a patient who asks for medical assistance to die. This failure to help patients is a professional contradiction and a breach of the social contract between medicine and society. This social contract gives doctors certain privileges, clinical autonomy, exclusive rights to practice medicine, self regulation. However, privileges come with duties; for example, doctors have to prioritize their patients' best interests over their own........If a doctor is unable to treat a patient for moral reasons, he or she is under the obligation to transfer the patient to another doctor who can provide adequate care".

HBO CURC's position is very clear on this issue: that a patients' right for medical treatment and advice trumps a doctors and other medical professionals religious, moral or ethical reasons for denying medical treatment, advice or referral. Conscientiously objecting health care providers must be required to either provide a referral, a direct transfer of care to another health care provider, or to contact and transfer the patients health records through a third party, agency or service which would have a duty to ensure the safe and timely transfer of care of the patient to a non-objecting provider. Delays and unnecessary barriers must be eliminated.

Council of Canadians with Disabilities [Edited video]

Mrs. Brenda Shanahan:  I have a question for the Council of Canadians with Disabilities. Have you thought about accessibility? Is that a concern in the measures you have proposed?

Mr. Dean Richert:  . . . We have thought about access, and access is a real issue. Listen,  CCD is very aware that people need access. And accessibility for us has been a concern throughout our history as CCD.  So this is also a place where we want to make sure that there is quick access, but we also realize that we don't want to put doctors in a position to having to make the decision. And if the doctor you are going to, your family physician, is one that maybe has a conscientious objection to facilitating or preparing the documents, this leaves them still available to be with the person that is their patient, to continue on, and to be close to them. . .

. . . A review board process will honour the differences and won't be a cookie-cutter. And the access can be quite quick. As we know with the care and consent board in Ontario, you can have access within 24 hours. And we're saying that it doesn't have to be by way of oral evidence, so it can be very quick. And it's not cookie-cutter at all.

And we agree that if you meet the criteria like a Dr. Low, this isn't a situation where you're waiting 45 days. This is a situation where you're in and out, where a doctor will say, yes, not vulnerable. He's requested it, two physicians have said yes. They've done a capacity assessment. They've done a consent assessment: done. Send it to the board: done. The doctor, if they have a conscientious objection, now cannot object to that. They send it to a review board process.

I can imagine it taking very little time to do that, very little time.

Criminal Lawyers' Association [Edited video]

Mr. Murray Rankin:  My next question is for you, Mr. Russomanno, and thank you.

 It's about criminal liability for physicians. What degree of misconduct would expose a physician to criminal prosecution as opposed to discipline by their professional body? We have a job here to look after the vulnerable. And there will be some problems, no doubt, where a physician assisting crosses the line. We've been urged to put a lot of our eggs in the basket of the disciplinary powers of the college, but there's still this criminal liability in certain circumstances.

So I'd love it if you would talk a little bit about that boundary.

Mr. Leo Russomanno:  Yes, and as I mentioned before, it's a heavy hammer the criminal law. And one might question whether or not it ought to be used at all.

I mean the question of counselling suicide is really a subset of homicide law. In many cases, if not most cases, counselling suicide is just another category of murder, without the mandatory minimum sentence of life imprisonment.

So using the Criminal Code to criminalize the conduct of physicians who might fall afoul or run afoul of the exception, that's to be created and was seen in essence in Carter, might be seen as a fairly heavy-handed way of dealing with those physicians. So the question you pose is a very good one. And the answer might lie more in the use of crown discretion, because crown attorneys exercise discretion every day. In fact, in even in laying a counselling suicide charge as opposed to a murder charge, there's an exercise of discretion which creates a massive difference.

Mr. Murray Rankin:  Just to build on that, then, presumably the charge in the worst case of misconduct would be either unlawfully assisting a suicide or homicide.

Mr. Leo Russomanno:  Murder, yes.

Mr. Murray Rankin: Yeah, so one carries a maximum sentence of 14 years, I believe, and the other a life sentence. So, if that's true, wouldn't that create an incentive for physicians to prefer assisted suicide over voluntary euthanasia?

Mr. Leo Russomanno:  I'm not sure I understand how that -

Mr. Murray Rankin: How do you, you know, there may be there's two sections that we have to deal with of the Criminal Code here in these circumstances. One could be a charge of homicide, and one could be a charge of assisting suicide in an inappropriate way.

Mr. Leo Russomanno:  The premise of your question I think might be based on answers given by - I apologize,  I don't remember her name, but she's a counsel at the Department of Justice who seemed to equate counselling suicide with physician-assisted death, whereas euthanasia would be more tantamount to murder. And I don't agree with that characterization.

Physician-assisted suicide, if it runs afoul of the exception in Carter, is, in every conceivable way that I can think of, murder.

Mr. Murray Rankin: Right.

Mr. Leo Russomanno:  It's a matter of crown discretion that a person is not charged with murder but rather with counselling suicide. So, aiding and abetting a murder, for example, to take it out of the physician-assisted suicide context, a person provides the getaway car to someone who will then go on to commit a murder, if that person provides the getaway care to that person knowing that they're specifically intending to kill someone is equally guilty of murder.

Mr. Murray Rankin: Right.

The Joint Chair (Mr. Robert Oliphant):  Thank you. 

I'm going to give Mr. Rankin one more minute if Ms. Hickey wanted to comment, because you were implicated in there on that boundary between criminal and regulatory discipline. I don't know whether you have anything you wanted to add.

Ms. Marjorie Hickey (Legal Counsel, College of Physicians and Surgeons of Nova Scotia):  I would just reinforce what Mr. Russomanno said in terms of the bluntness of the instrument of the Criminal Code and urge that professional standards be developed on the more nuanced areas involving the clinical judgment of physicians that can address individual circumstances so that the provisions of the Criminal Code deal only with those provisions that require clarity on the eligibility criteria. That will then give physicians the appropriate discretion to exercise their judgment, which would then fall within the realm of the medical regulatory authorities provincially to address it in the type of nuanced way that can better be accomplished through that mechanism than through the blunt instrument of the Criminal Code.

The Joint Chair (Mr. Robert Oliphant):  Just before we move to Senator Joyal, I wanted to give Mr. Russomanno a chance to clarify something for the record our analysts are questioning. It does refer to section 241 of the Criminal Code, which has an (a) and a (b).  (a) refers to counselling a person to commit suicide.  (b) is aiding and abetting a person to commit suicide.

And Carter is dealing with (a), and you kept referring to (b) but we're blending them. We just want to make sure we can clarify this so we can use it for testimony.

Mr. Leo Russomanno:   Thank you. I appreciate that opportunity. We're talking about different kinds of party liability, so under section, I believe, it's 21 of the -

The Joint Chair (Mr. Robert Oliphant):  It was (b) and (a) I mixed up, but you get my point.

Mr. Leo Russomanno:  Okay.  I'll take your word for it either way.

Party liability generally is dealt with under section 21 of the Criminal Code for most offences, for example, for aiding, abetting, or encouraging an offence. So there's different kinds of party liability. You can actively, just through words, encourage someone to commit a criminal offence, which seems to be parallel to the (b), 241(b), whereas the actual act of aiding, which is perhaps providing the life-ending medication to someone, goes beyond mere words of encouragement and actually playing a different role in bringing about the end of that person's life.

But, either way, you get to that end result, which is liability under the Criminal Code, so those are just different expressions of party liability through different means. . .

Hon. Serge Joyal:  So should we not consider that there is a middle ground, and propose in our report to Parliament that in case of breach of the law that we would be drafting that there should be some elements to consider in terms of penalty, either as a mitigating factors or a different scale of penalty?

Mr. Leo Russomanno:  Well, it sounds like an issue of sentencing, if I understand correctly. As it stands, 241 provides a maximum sentence of 14 years. It would seem that there's wide latitude in terms of the sentence available.

One thing I should say to clarify as well with respect to using the criminal law to render physicians liable, is that we have the added protection in criminal law of mens rea, of the mental element of the criminal offence. Not only would the, so a standard of negligence, for example, would not be high enough, presumably, to meet the mens rea, which is more often than not in the Criminal Code a subjective component. There would have to be a specific knowledge on the part of a physician, presumably, that the person is not consenting in a competent way. So that may address some of the concerns with, you know, physicians being liable for acts that may run afoul of the Carter exception.

In terms of a penalty, yes, I mean, I think just generally speaking the Criminal Lawyers' Association thinks that the Criminal Code should be used sparingly, and that very often there might be other regimes in place to deal adequately with these kinds of “misconduct”, if I can call it that way. I'm not trying to take away from the seriousness of the situation, of course, but there are regulatory bodies that do handle physicians that are negligent or do have acts of misconduct in this regard.

So I'm not sure how else you might build in discretion in sentencing in the Criminal Code. With the maximum as it exists, it would seem that there already is in place quite a significant latitude. I believe it is a straight indictable offence. So perhaps there would be additional latitude by making it a hybrid offence. That would give additional discretion on the part of the crown attorney.

Hon. Serge Joyal:  That's what I was contemplating, that was to be my next question.  That would be a way for the crown to exercise discretion on the nature of the circumstances in which the breach happened, and give an opportunity to mitigate, as you said, the strength of the Criminal Code as it is now in relation to that offence.

Mr. Leo Russomanno: Yes. And generally speaking, the summary conviction offences carry a maximum penalty of only six months' imprisonment. In some other cases, 18 months, but as a maximum. So that's one of the major differences. It also just generally represents a less serious offence when the crown elects to proceed by way of summary conviction. So that  might be a way to include greater latitude in the Criminal Code.

Hon. Serge Joyal:  And since you are a lawyer also, Dr. Grant - and of course Madam Hickey could certainly have an idea of this - what's your view of that?

Dr. Douglas (Gus) Grant:  There are two types of potential breaches. Perhaps that's overly broad, but the two potential breaches I foresee are the inappropriate provision of PAD. And if that's accompanied by a mens rea, that is inherently criminal. If it's not, then it's the inappropriate exercise of professional judgment, and that's regulatory. The regulatory colleges are familiar with these overlapping spheres. Sadly, we face those cases all too often.

The other type of breach would be the inappropriate blockage of access. And, as I made the point in my submissions, I worry about that. And if a physician, through obfuscation or what have you, inappropriately blocks access to an otherwise eligible patient, I know of nothing that would call that criminal as yet - that would be before your committee to consider - but I would say that it would be something that a regulatory body would deal with quite severely. . .

Hon. Serge Joyal:  . . . Back on the definition of a hybrid offence.  The Criminal Code contains a certain number of hybrid offence. Could you explain to us, to the members of the committee, the principles that preside over an hybrid offence versus an indictable offence? In other words, what are the substantial elements that define an hybrid offence in comparison with an indictable offence?

Mr. Leo Russomanno:  . . .for an indictable offence, there is no time limitation as to when the alleged offence occurred. It could have been historically years earlier. Whereas a summary conviction, or a hybrid offence which allows for the possibility of a summary election, it would have to be six months since the date of the alleged offence. So I should back up and say that, for a hybrid offence, what that means is  the crown has the power to decide whether to prosecute by way of summary conviction or by indictment. A straight indictable offence is just simply that; it's indictable. So the other limitation on a summary conviction offence is that the maximum sentence is 18 months, and that's only for a prescribed few offences.

Procedurally, there's other limitations with summary conviction offences, in that they are tried in the provincial court. In Ontario, it would be the Ontario Court of Justice, and there's no right to elect a judge and jury trial.

 For indictable offences, with some exceptions, there is a right to elect mode of trial with a preliminary inquiry or a trial by judge and jury. Of course, there's exceptions in the law, but those are the broad differences between a hybrid, which allows a choice, and a straight indictable offence.

Hon. Serge Joyal:  So you don't see any circumstances into which, in relation to physician-assisted death that there would be circumstances for which a different offence can be created than the one that the courts provide now in relation to 241?

Mr. Leo Russomanno: A different offence that does not have the same elements? I don't see what a different offence would look like.

 And I would say that given the legislative objective of protecting the vulnerable from being in a state of weakness, as the Supreme Court puts it in Carter, to be coerced to commit suicide, that's a very serious offence. With the commensurate mens rea, that's a very serious offence, of course, because a physician in that context would be bringing about that person's death without their consent.

Again, I go back to my earlier comment that this is not really different from the offence of murder. It carries the same elements: the causation, substantial contributing cause of death, and the specific intent to bring about that person's death. And so I'm not sure if there would be room for another criminal offence and I'm not sure that the CLA would really be in favour of creating more criminal offences to criminalize the conduct of individuals in this context.

Hon. Serge Joyal:  In relation to the role of the College of Physicians and Surgeons of Nova Scotia, when you conduct inquiries in relation to professional negligence, what makes the distinction between professional negligence, that in some cases might be very important in terms of consequences for the bodily integrity of the person, and a Criminal Code offence?

Dr. Douglas (Gus) Grant:  . . . With respect to the discussion you were having with Mr. Russomanno, I would worry that the contemplation of a hybrid-type offence, a watered-down criminal charge would have the effect of chilling physicians from providing this service. That it might act as a deterrent to consider getting into this realm of practice.

The colleges often deal with complaints and conduct investigations that may overlap with the criminal sphere. There are times when there are positively articulated obligations of the college. If, for instance, if we see anything that involves sexual abuse of a minor, we immediately, perforce of statute, involve law enforcement. So we would need clear direction about the Criminal Code provisions and we would adhere to them.

. . . I can't speak for most of the colleges but I can tell you that in Nova Scotia we have an effective, close working relationship with law enforcement. We, if there's a matter that seems on its face potentially criminal, if we have reasonable grounds to suspect there's criminal activity, we make a determination based on the immediate public safety, which may involve suspending a doctor's licence on an interim basis, informing the crown, and then waiting for the crown to conduct a criminal investigation. The parts work fairly smoothly.

Hon. Serge Joyal:  Soyou have the experience of that kind of co-operation.

Dr. Douglas (Gus) Grant:  Sadly, sir, yes.

Hon. Serge Joyal:  Well, of course, nobody would want to see that happening.

Department of Health [Edited video]

Ms. Abby Hoffman:  . . . But provinces and territories are also looking for common ground on issues such as appropriate wait times between a request for and the provision of physician-assisted dying; how to protect the conscience rights of providers in ways which avoids limiting access to patients who may seek a physician's aid in dying; data collection, monitoring, and reporting; and research. These are issues which may best be addressed through pan-Canadian approaches led or coordinated by the federal government in conjunction with other partners. . .

Ms. Abby Hoffman:  . . . are you asking for the distinction as to how these are defined in each of the two languages, or are you simply asking for the distinction between euthanasia and assisted suicide?

Mrs. Brenda Shanahan:  Yes, yes,we've seen different terms being used in the reports, so just to talk to us a little about that in terms of how your department would be working with this issue.

Ms. Abby Hoffman:  Well, I think that, I guess the first thing I would say is that our general understanding - I know that colleagues from the Department of Justice spoke in some detail about this the other day - is that, that we would regard the Supreme Court decision as having addressed both euthanasia and assisted suicide.

And I think probably one of the most important considerations is simply that euthanasia, in effect, involves an act taken directly by, in this case, a legitimate authorized medical provider who actually is personally and directly responsible for taking steps to hasten death of an individual. Assisted suicide engages the provider in a significant way, but at the end of the day, it's actually the individual who wishes to bring their life to an end who actually administers the medication that will hasten their death, so in effect the most important distinction is who provides advice and who administers medication that hastens a death.

Then, within those categories, you will find in various of these reports descriptions of voluntary euthanasia, involuntary euthanasia, and so on, but those are kind of subcategories of those two essential distinctions. . .

The joint Chair (Mr. Robert Oliphant):  . . . From Health Canada's perspective, what is the difference between voluntary euthanasia and physician-assisted dying? I wasn't quite sure in your definitional answer. I understand involuntary euthanasia, but the difference between voluntary euthanasia and physician-assisted dying, because both have a volitional....

Would you have an answer?

Ms. Abby Hoffman:  I suppose the most obvious dimension of that is that physician-assisted dying, could entail providing somebody, providing they've gone through all the appropriate steps to demonstrate competence and informed consent and so on, physician-assisted dying could include advising an individual how to actually accelerate their own death, whereas euthanasia is actually the authorized medical personnel administering the, generally speaking, medication, that would cause death.

The joint Chair (Mr. Robert Oliphant):  But one death could be the same. It could be both.

Ms. Abby Hoffman:  Well, I would say that voluntary euthanasia is one form of physician-assisted dying.

Hon. James S. Cowan:  . . . can you help us two or three or four issues for that you think there would be a clear expectation of federal leadership on those issues?

Ms. Abby Hoffman:  Look, I would say first of all the question of is it euthanasia and assisted suicide or one or the other. Issues around conscience rights and how those should be respected, and the implications of respecting them with regard to access. Eligibility issues, issues around age, any further elaboration or what constitutes, further detail on the criteria that the Supreme Court set out around suffering, irremediable illness, grievous condition, all of that. Whether or not, I mean there's been a lot of controversy about whether or not mental illnesses should be included, so that's connected to that.

Department of Justice [Edited video]

Ms. Joanne Klineberg (Senior Counsel, Criminal Law Policy Section, Department of Justice:  In terms of policy issues to consider from a criminal law point of view, Parliament would be considering an exemption for conduct that is otherwise criminal, namely, the crimes of aiding suicide and murder, which correspond to the two different types of physician-assisted dying. An exemption is needed to shield physicians and possibly other medical practitioners, such as pharmacists and nurses, who may provide assistance in physician-assisted dying from criminal liability. . .

 . . . As a preliminary matter, there sometimes appears to be some uncertainty, at least among some Canadians, about what physician-assisted dying is and what it is not. Physician-assisted dying is not the act of withdrawing medical treatment that a patient does not want, nor does it refer to a patient's right to refuse treatment or medicine in the first place. In these circumstances, if death does result from the withdrawal or the refusal of the medication, this is not a crime because the cause of death is the underlying medical condition. No mentally competent person can be compelled to receive treatment they do not want, as this would amount to an assault in criminal law and also a civil wrong.

So physician-assisted dying refers to conduct that involves someone, a physician, actively participating in bringing about the death of another person.

Before Carter, this kind of conduct in any form was criminally prohibited in a variety of ways. The court considered that only two Criminal Code provisions were at the core of the prohibition against physician-assisted dying. First, section 14 of the Criminal Code, which states:

No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

Section 14, therefore, operates in conjunction with the crime of murder, which is in essence the intentional causing of another person's death. Section 14 means that a person's consent to die has no effect on the criminal responsibility of one who caused their death. It has always been murder, even if the victim wanted to die.

Second, paragraph 241(b) of the Criminal Code, which reads, everyone who “aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence” punishable up to 14 years in prison.

These two provisions prevented a person from receiving a physician's help to die in all circumstances. So it is critical to note, like most other criminal provisions, they are of a general nature. And they also serve to prevent non-physicians from helping others to die in situations that are totally outside the context of physician-assisted dying.

These two provisions were at issue because there are two ways in which a physician can help a person. One is by providing the person with the means to end their own life, such as by providing or prescribing a lethal dose of drugs. The individual who receives the assistance takes the necessary final actions that cause their own death. They are the agent of their own death, with someone else's assistance. This is known as physician-assisted suicide.

The other way is generally referred to as euthanasia. And it is where the physician directly causes the person's death, typically by injecting a lethal medication. This does meet the definition of murder, which is the most serious offence in Canadian criminal law. And it's punishable by a mandatory sentence of life in prison and at least 10 years of parole ineligibility.

Murder is considered the most serious offence under Canadian criminal law and in most other countries, because one person is actually causing the death of another rather than just helping that person end their own life. The differences between the two practices, including the different types of risk that each could entail, formed no part of the litigation before the Supreme Court. The court did not differentiate between the practices but dealt with both under the general term “physician-assisted dying”, or “physician-assisted death”. . .

Ms. Joanne Klineberg:  . . . I may have misspoke when I, I generalized slightly when I indicated that it [euthanasia] was a term that's well understood, excuse me, well defined.  It is well defined, but there are subcategories of euthanasia.

So, in the context of the Carter case, the court was only ever speaking of what could be called “voluntary euthanasia”, which is exactly where the person asks, is competent to make the decision. So they are aware of their circumstances; they have received the necessary medical information; they are capable of understanding the consequences of the different decisions that they might make. Such a person who requests assistance to die, if they received that assistance from a physician, that would be called voluntary euthanasia.

It could be involuntary if, for instance, a physician terminated the life of a patient contrary to their wishes. That could be called “involuntary euthanasia”.

There is another subcategory that could be called “non-voluntary euthanasia”, which would be where the wishes of the patient are unknown.

So, I thought it might have been best to try to avoid some of these complications, but it turns out it's impossible. . .

Hon. Judith G. Seidman:  . . . you said that there are differences in terminology used in discussions by different groups, and there are subtleties implied in their usage. So we know that, in Quebec, the term “medical aid in dying” is used. I have heard that palliative care prefers the term “physician-hastened death”. We ourselves see in the Carter decision “physician-assisted death” and “physician-assisted dying”. We hear “euthanasia”, “suicide”. So there are a lot of terms used.

My question to you is, from a legal point of view, what is important when we think about the terminology that will be used in the legislation?

Ms. Joanne Klineberg:  From a criminal law point of view, what would be important to be clear on is which are the criminal offences for which we're going to create an exemption. So there is an offence; it's called aiding suicide. That doesn't necessarily mean that it wouldn't be possible or appropriate to coin a different term for what I'm calling physician-assisted dying today. But the legal elements, from a true criminal law perspective, should be clear so that physicians and other medical practitioners can know what they're able to do and what they're not able to do. That's what they will want to give them the confidence, if they're otherwise willing, to provide this service. So the legal clarity, from a proper criminal liability point of view, is very important.

In terms of, at a more social policy level, what do we want to call this practice? That is a very challenging question. And, I mean, there's even finer distinctions to be made. And so, for instance, I could bring it to the committee's attention that some of the stakeholders who spoke to the federal panel - you will all see this when you peruse the report - they were also drawing a distinction between dying and death. So, dying is a process, whereas death is an event. And so some have even made the recommendation that we should never be calling this physician-assisted dying. Many palliative care physicians feel that that is what they already do; they assist patients who are dying by making them as comfortable as possible through the dying process.

There's also a danger with these kinds of terms, and that is that people don't necessarily understand what they mean. So there was some polling done at the time when Quebec's legislation was before the National Assembly. When Quebeckers were asked what they thought aide médicale à mourir, or physician-assisted dying, meant. And I think something close to 50% said they thought it referred to withdrawal or refusal of treatment, which has been legal in Canada for 20 years. So if people are mistaking what a general phrase means, that's not going to facilitate discussions between doctors and patients, and it could confuse things.

I fully recognize the difficult nature of choosing the right terminology on this. . .

Ms. Joanne Klineberg: One overarching consideration the committee will encounter very quickly is the divided jurisdictional nature of physician-assisted dying in Canada. Under our constitution, Parliament has exclusive jurisdiction for the criminal law. The Supreme Court confirmed in Carter, at paragraph 51, that Parliament has the power to make laws that touch on health on grounds of dangerousness or social undesirability. The criminal law is about morality and fundamental values such as in relation to concerns about the devaluation of human life. It can also be about public health, such as concerns over risk of abuse and about the safety of individuals, and, in particular, vulnerable individuals. Parliament's concerns, from a criminal law perspective in the context of PAD, therefore relate to the minimization of risks and the protection of social values that are considered of fundamental importance in Canadian society. . .

There are aspects of physician-assisted dying regulation that could be seen to fall squarely within Parliament's criminal jurisdiction, such as the essential elements of an exemption to  otherwise criminal conduct. There are also elements that could be seen to fall squarely into provincial jurisdiction, such as conscience protections for physicians that seek to balance the competing rights of physicians against those of patients. There are also issues that could potentially be regulated by both levels of government but again from different perspectives: by Parliament, from the perspective of minimizing risk and protecting public health and morality, and by the provinces and territories, from the perspective of making available a beneficial health practice. . .

Hon. Judith G. Seidman:  So there isn't in your best expert opinion, there aren't particular aspects of assisted dying that Parliament itself, at a federal level, should address in legislation and those that must be left to the provinces.

Ms. Joanne Klineberg: Well, surely, any amendment to the Criminal Code that says these are the conditions under which conduct that otherwise meets the definition of a crime shall be free from criminal liability: that is exclusively the responsibility of Parliament.

There are a variety of ways that Parliament can go about that. It can put very little in such an exemption. It could say, for instance, that, so long as the conduct is in accordance with a very detailed provincial law, then that will result in an exemption for criminal purposes for the same conduct; or Parliament could say for the criminal exemption to apply, we're going to determine for which offences it applies, we're going to determine under what circumstances it applies. So it would really be with respect to the fundamental circumstances in which physician-assisted dying is available, that there's a very strong claim that that is Parliament's jurisdiction as a matter of criminal law. . .

Hon. Judith G. Seidman:  The Supreme Court decision speaks to Charter rights not only of patients but also of physicians. And patients, therefore, they have the right to access, but physicians have the right to conscientious objection. So I'm wondering if you have any advice to offer us on how to reconcile what are potentially competing charter rights.

Ms. Jeannette Ettel:  I think that that's going to be one, as my colleague was mentioning, the issues around an approach that's taken to how and when physicians may object, that's going to be really a part of the provincial-territorial response, most likely. So that, to my mind, would be one of the sort of lower-order issues that arises for this committee in terms of what the federal response is going to be but at a very general level.

As with other cases where the court has had to deal with the issue of competing rights of different parties, it always comes down, at a very general level, to a kind of balancing and, you know, whether whatever balance has been struck is reasonable and proportionate in the circumstances. And I would think overarching would be the decision and the holding in Carter that there has to be access. That's sort of the baseline, is whatever approach would be taken to give appropriate respect and protection to the freedom of conscience rights of physicians would have to be reasonably balanced by access for the rights holders that were described in Carter.

Hon. Judith G. Seidman: Okay. So you're suggesting that it's the provinces that would deal with this particular aspect of the Canadian charter rights.

Ms. Joanne Klineberg: Yes. Currently, the provinces and territories do have legislation and policies in relation to the rights of physicians to refuse to partake in certain types of medical practices, so it is definitely something that the provinces and territories already are responsible for. There is a fairly limited scope of action on this particular issue from Parliament's criminal law jurisdiction.

Dying with Dignity Canada [Full text]

6. Doctors have the right of conscientious objection but must provide information and effective referrals (or transfers of care) to an institution, independent agency or other provider.

7. Publicly funded healthcare institutions, including hospitals, hospices and long-term care facilities, are required to provide physician-assisted dying on their premises.

Oral Submission - Jarrett [Edited video]

Ms. Linda Jarrett (Member, Disability Advisory Council, Dying With Dignity Canada: . . .The members of our disability advisory council strongly feel that the law needs to strike a balance to protect vulnerable people from having an assisted death that they don't really want and, from my point of view and our council's point of view, to ensure access to assisted death for those who do have an enduring wish for it.

To this end, we propose two further key principles. That doctors, while having the right not to administer or prescribe life-ending medication, must be willing to provide information and transfer the care of patients who seek an assisted death, so that patients are not abandoned. We don't want someone who is desperately ill, with great pain, being given a website or a phone number or the Yellow Pages, in order to, and being told to find another doctor.

We further believe that tax-funded institutions, whether they be hospitals, hospices, or long-term care facilities, must provide assisted dying on their premises to patients who request it. For example, some of our members in British Columbia are concerned that they may need emergency medical care and be transferred to one of the perhaps Catholic hospitals in that province, and they don't want to give up their right to an assisted death just because the hospital where they have been transferred to has a historical association with a particular religious viewpoint on assisted dying. . .

Oral Submission - Morris [Edited video]

Ms. Wanda Morris (CEO, Dying with Dignity Canada):   I now want to turn to the issue of access.

My colleague has talked about the need of the Supreme Court to reconcile the rights of doctors and patients. And although the Supreme Court didn't compel doctors to provide an assisted death, that is not something that we argue for. We believe every physician should have the right to refuse to either prescribe or administer medication, but we think it's critical that patients' rights be acknowledged too. And simply allowing doctors to turn their backs on patients and walk away does not serve patients or the health care system well.

Patients must not just be left with a Yellow Pages and information to find their own doctor. They need support and access, and we think there's a very expeditious way that the committee can recommend that this happen. It's through transfer of care. Quebec's legislation talks about a doctor notifying their institution. That would be an acceptable solution to us.

What we do not believe is that patients should be left to fend for themselves. And in the event that doctors are not providing - in the event that there is not a system in place to expedite care, then the responsibility must fall on doctors to provide effective solutions and effective referral. Ultimately, the health care system must be here to support patients, not to answer to the wishes of doctors.

And finally, I'd like to talk about the roles of institutions. In Quebec in the final bill, there was some concessions made where stand-alone hospice palliative care facilities were allowed to choose not to provide an assisted death. We have also heard from many religiously affiliated institutions that they do not believe that assisted death should be provided on their premises.

We do not accept that bricks and mortar have a right of conscience. If a taxpayer-funded institution has patients that are eligible for assisted dying, they must provide it. It is not up to them to deny patients their charter right, nor can they discipline doctors who are acting on their conscience to provide a qualified patient within a framework of the law the right to the assisted death that they seek. . .

Ms. Julie Dabrusin:  Ms. Morris, when I looked at the legislative framework that your organization put forward, there was a system for mandatory referrals. And part of it, I wanted to ask, you restricted it to physicians and pharmacists in that framework. Why was that?

Ms. Wanda Morris:  So, we believe that ultimately a patient should have an effective referral, but if that can be accomplished by a transfer of care, we're happy to work with others and achieve a reasonable result.

I'm not sure where it says just physicians and pharmacists. Where we saw those as sort of the two potential stoppages where a physician wouldn't refer or a pharmacist wouldn't fill a prescription, but certainly we think no health care professional should be able to obstruct the process. . .

[Edited video]

Hon. Judith G. Seidman: You've all talked about conscientious, the right of conscientious objection for the physicians, and clearly the question that comes forward is what is the best means is to ensure equity and access to assisted death for patients who want it, plus, of course,  reconcile that with the Charter rights of physicians with their conscientious objection.

The  CMA called for the creation of a separate central information, counselling, and referral system in their 2015 report on this subject, and I'm wondering what your reactions would be -  all three of you I put that question to you, to that kind of an approach. 

Ms. Wanda Morris (Dying With Dignity):  Our primary concern is that patients not be abandoned. And if that recommendation effectively allows for care to be transferred and patients to receive treatment, then we support it.

We do have concerns, though, about an independent agency without access to confidential information about who is providing assisted deaths to be able to carry out that function.  We're also really concerned that this shouldn't be outsourced outside of the medical system where an independent group perhaps has to fundraise to provide that critical service.

Oral Submission - Smith [Edited video]

Dr. Derryck Smith (Chair, Physicians Advisory Council, Dying With Dignity Canada): 

In terms of the rights of conscience, I don't think any physician should be forced into performing a medical act that they do not believe in. In fact, doctors have a wide range of flexibility already in their practice. In theory, I could be out doing surgery, according to my license, but I'm obviously choosing not to do that. So you don't even have to evoke conscience to have doctors refusing to participate in certain medical acts, including this.  So if doctors, because of religious or other beliefs, don't want to participate, I think we should allow them not to have to be involved, but they should have to make an effective referral, because it's the rights of the patient, the autonomy of the patient, that takes primary concern with these issues.

I have a grave concern, however, about discussions allowing institutions, health authorities, or hospitals to opt out based on a so-called objection of conscience, because, if we allow health authorities to opt out, for example, it may be that the entire north of British Columbia would be without these services, or the entire province of Alberta, or Prince Edward Island. And there is a history with this, in that abortion services are still not available on Prince Edward Island, and women have to go off-island.

So I think this is a national program. It should be available nationally. I do not believe that institutions that receive public funding, such as hospitals or palliative care facilities, should be able to opt out. If they are private, that is one thing, but public funding should allow the institution to provide this, and I know that battles are already forming up in B.C. between Catholic-based institutions and the medical staff. In Comox,  I'm told by a medical colleague that at St. Joseph's hospital, the medical staff have voted in favour of providing physician-assisted dying, but I suspect that the institution, the hospital, may not be in favour of that.

So, that's an issue that I would like to see addressed to make sure that this is widely available to all members of the Canadian public.

[Edited video]

Hon. Judith G. Seidman:   Okay, so that leads actually lto my next question, to which Professor Ells and Ms. Baxter and perhaps even Dr. Smith might respond to, and that has to do with the referral process itself and the transfer that everybody has talked about.

I'd like to have some explanation about how you see that working. So, for example, when the British Columbia Civil Liberties Association were here yesterday, they said, the solution they would propose was that physicians should have to notify some third-party body, whether it's the hospital or the health authority, of their refusal. Not to provide an effective referral but simply notify, with the permission of a patient, that they do not want to carry out this service. And in that way there can be a transfer of care for the patient, which is what happens in Quebec right now.

But, how would that work? Is it left to the provinces? Is it the professional regulatory bodies that are going to make some kind of systematized approach to this? Is this something that should be in the federal framework? How do you see that happening?

And maybe I could start with . . . Dr. Smith.

Dr. Derryk Smith (DWD):  Well, if you look at how referrals are made now, it does not involved any formalized bodies in any of the provinces. Family doctors make referrals to surgeons, psychiatrists, and so on, and it's all pretty informal, so if you want a system put in place, there is nothing to build on currently.

I suspect that what's going to happen is that there will be consumer groups spring up. I know my organization is interested in helping doctors who are interested in this form organizations so that it may become well known which doctors are going to be involved and which ones aren't. Which is the model used for most abortion services in Canada currently. I would be reluctant to institutionalize a referral system, but, on the other hand, we have to make sure that it's the patient's principles, of autonomy and their needs that are put at the forefront, not what institutions and doctors may wish to do.

So we need to have some public way of getting referrals from doctors who do not wish to participate so that patients' care is continuous and that people don't get dropped, because this is a critical stage in their life. This is not a stage in your life when you want to be digging around trying to find a new family doctor. So there needs to be some thought given to how that's going to be operationalized, and I don't have a ready solution for you, I'm afraid, at this point.

Hon. Judith G. Seidman: Thank you. I appreciate that, because that's exactly the reason for the question, is the point you just made, and that it is that we need to think about the patient. It needs to be patient-centred, so we need to ensure access when a physician decides he can't do it. . .

Dr. Derryk Smith (DWD):  I'm very much in favour of standards. I think there should be rules such that there must be a smooth transfer of service from doctors who do not wish to participate to those who will. And that's a heavy burden to put on doctors who object, but it's important, because these are vulnerable people at the end of their life who must not be left dangling because their doctor does not want to provide this service to them. 

So principles, yes, specific regulations, I don't know. . .

Dyment, Alan [Full text]

. . . Nobody who disagrees with the right to a death with dignity has the right to deny that choice to others. This also applies to physicians, pharmacists, nurses and other medical staff. Referrals must be made, where necessary, to other medical personnel so that patients are not abandoned. . .

. . . The right of Canadians to access medically-assisted dying should not be limited by religious or cultural beliefs of others. While affirming the rights of anyone not to choose this path for themselves, the rights of the patient must be paramount. Medical personnel should also not be required to participate in medically-assisted dying, but must be required to make appropriate referrals to others who have indicated their willingness to support the patient's wishes. . .

Dyrholm, Joan [Full text]

I am a Canadian citizen, a self-employed working wife, mother and grandmother. The reason I have followed, this development of proposed social change, is that from 1969 -1972, I was part of another social change that greatly impacted my life and career as a Registered Nurse in the Operating Room at the Calgary General Hospital, here in Alberta…. but I'll expand on that later. I am presenting for two separate reasons:

1. From my past experience, where I believe that my own rights and conscience, were neither protected nor taken into consideration.

2. For the future, as our daughter is now completing her third year of Medical Education. I am concerned how this could impact her and her profession. . .

2) That in legislating that one person may end their life, that their rights do not supersede the rights of the enabler, or adversely effect the consciences, rights and future mental health of the person who has to assist them in this wish. The person requesting death will not be around, to experience or express any regrets, in this world, but, the assister, will have many years with this action in their memory. Some will regret it, others won't… but only time will tell. i.e. as in war, which soldier will suffer from Post Traumatic Distress and which ones won't. I recommend that the person who has to carry out the act is not pressured in any way. My concern here is for the junior members of the group, that is legislated to carry out the death. Could they fear, that if they don't comply, they are jeopardizing their expensive education and future careers.

Eayrs, Jonathon [Full text]

. . .However, when it comes to PAD as contemplated in the Carter decision, focusing solely on patient consent misconstrues the situation. In this instance it is not the physician presenting treatment options to the patient in order to elicit his or her informed consent. Instead, PAD is the option being proposed to the physician by the patient. PAD clearly does not fall into the ordinary range of treatment options to be proposed to a patient by their doctor.

Accordingly, as and when the eligibility criteria are met, the party being asked to consent becomes the physician. At this point, the physician's choice whether or not to perform the requested procedure needs to be free from coercion in order for the principle of informed consent to be respected for doctor and patient alike. As was noted in the hearings, the Carter case involved a willing doctor and a willing patient - both are essential. Enabling the freedom to choose on the part of the physician does not derogate from patient-centred care. . .

Ells, Carolyn [Edited video]

Dr. Carolyn Ells:  . . .To the issue of conscientious objection, this is something that was, no doubt still is, hugely concerning in Quebec. So for the last few years when Bill 52 was in the pike, and before and then after it was passed by the National Assembly, both health professionals and institutions were very concerned about conscientious objection, what they were allowed and what they weren't allowed, and I coordinate activities with ethics consultants at McGill-affiliated institutions, and this was for sure an abiding concern.

. . . My view on this issue is similar to our colleague: that an individual health professional should be allowed to make a conscientious objection to providing physician-assisted suicide; however, the duties of care and duty to inform and that continue.

Some institutions, notably some faith-based institutions, may also make a conscientious objection to providing end-of-life care. This is natural when the core values of the institution are in conflict with providing such services. However, like health professionals, institutions also who are in the public sector have social contracts. And so to some extent, we should require at least non-faith-based institutions to allow or not prevent physician-assisted suicide, sorry, physician assisted dying from taking place on their institution. And those who are objecting should transfer, to the extent that, transfer or offer transfer, or offer people to come in and provide that services there.

To the extent that it's possible, I think that the, that  physician-assisted dying should be required of certain health care institutions, probably your regional hospitals and the big referral hospitals, as a matter of providing access to Canadians. . .

Dr. Carolyn Ells:  . . .if it's the rights of Canadians to receive access to physician-assisted dying, then I would like to see that the federal legislation requires provinces to make is avail, provinces and territories to make it available in each province and territory where people live. I think we have to compromise, the struggle of competing values so that some institutions are responsible to provide it. Whether others can opt out, particularly if it's a conscience-based deep core value for a reason to opt out, the system nonetheless ought to provide it. . .

[Edited video]

Dr. Carolyn Ells:  Referrals or transfers take place at two different levels. One is between physicians, the attending physicians for the patient, and another may take place between institutions. The between physicians is not so problematic, other than requiring the transfer firmly, timely and fairly. That's already in their codes of ethics. That's already in place.

But institutions will, should be required to know who is available in their institution to provide these things. Institutions who may make conscientious objections should-

Hon. James S. Cowan:  But I don't understand how.... I can understand how an individual can have a conscientious, but how does a building have a conscientious objection? How does it have an ethical-

Dr. Carolyn Ells:&  It's not quite as comfortable, but most of these, hospital institutions, like many institutions, have missions, visions, values, statements, and their values ought to drive, if they're an ethical, robust organization,their values ought to drive the strategic plan and how they roll out their policies, how they provide their services.

I'm aware of, for instance, a particular small Catholic hospital that opened up a large palliative care unit in Quebec - poor timing - and then had to struggle with, do we eliminate this important service for the people in our community or not because of their own conscientious view.

Euthanasia Prevention Coalition [Full text]

4. Physicians who do not participate in assisted death due to their conscience or personal beliefs, must not be forced to participate in any way, including referral. In early January 2016, the Dutch Medical Federation (KNMG) upheld the right of doctors to refuse to participate and their spokesperson stated that: "Euthanasia should not be something that can be forced on doctors.

Evangelical Fellowship of Canada [Full text]

Freedom of conscience

Physicians must have the right to refuse to participate in physician-assisted suicide for reasons of conscience, either directly or indirectly, including the right not to have to provide a referral. In the Headnote of Carter, the Court said, “Nothing in this declaration would compel physicians to provide assistance in dying.”

The question of referral was not directly addressed in Carter. It is important to understand that providing a referral is, in effect, a professional recommendation for a course of treatment. In the case of physician-assisted suicide or euthanasia, it is a form of participation in an action that is destructive to the patient and is contrary to the deeply-held beliefs of many physicians. The Court's statement, “The Charter rights of patients and physicians will need to be reconciled in any legislative and regulatory response to this judgment” immediately follows the assertion, quoted above, that “Nothing in this declaration would compel physicians to provide assistance in dying.” These statements taken together indicate a need to reconcile the rights of patients and physicians without compelling objecting physicians to provide assistance, directly or indirectly.

There is a reason why the medical professionals who are closer to the direct care for people at the end of life are more opposed to the practice of assisted death. They believe it is categorically different than end of life care, including palliative or continuous sedation in the last days or hours of a patient's life. The intention to end a life, rather than to alleviate pain, makes euthanasia and assisted suicide fundamentally different than end of life care.

It is a violation of conscience to be compelled to take another person's life or to participate in the taking of a life. This right to conscience protection is fundamental. If there are concerns about patient access to physician hastened death, we urge you to seek a resolution that does not violate conscience.

As well, many faith-based institutions provide senior care, extended care and hospice care. The care they offer is an expression of the deeply held beliefs of the communities that provide the care. To compel these institutions to facilitate or allow assisted death on their premises denies the beliefs that animate their compassion. Health care professionals, staff and the administrators of these facilities should not be compelled to participate in or facilitate assisted death, and these facilities should be able to obtain an exception if Parliament proceeds. . .

Farrow, Douglas [Full text]

. . . A regime that tries to offer both medicine and terminations is certain to generate unacceptable conflicts of interest as well as irresolvable conflicts of rights. Moreover, medical personnel have a right not to be involved with killing and patients have a right to medical care that is not compromised by entanglements with killing. . .

Fernihough, William [Full text]

6. Doctors have the right of conscientious objection but must provide information and effective referrals (or transfers of care) to an institution, independent agency or other provider. I strongly believe in professional choice, both for the patient and the physician. While physicians may refuse to provide PAD for reasons of conscience, they must not abandon patients. Physicians who oppose assisted dying must be required to refer patients who request it to another doctor or a third-party referral agency. Sick and dying patients should not be responsible for finding an alternate doctor on their own. Doctors who oppose participating in the procedure may agree that the patient has made the proper arrangements for the procedure and pass the execution of the procedure along to other medical professionals trained in the process. . .

7. Publicly funded healthcare institutions, including hospitals, hospices and long-term care facilities, are required to provide physician-assisted dying on their premises. All publicly funded healthcare institutions must allow PAD on their premises. If no doctors on staff are willing to provide, an external doctor or trained medical staff must be permitted into the hospital to provide the service. This policy is especially relevant for small communities where healthcare options may be limited. Some non-publically funded hospitals may hold religious or cultural beliefs against this procedure and those situations must be respected. But those institutions must not hold veto power over the patients' rights and wishes, and they must provide a means for the patient to be taken to a venue where the procedure can be carried out in an expedient manner.

Goodwin, Lori [Full text]

. . . Physicians have the right of objection to PAD based on their religious or personal beliefs, but must be required to provide referrals and information (transfer of care) to a qualified provider of PAD. Publicly funded healthcare institutions (hospitals, hospices, long term care facilities, palliative care facilities) should be required to provide PAD on site. If a facility physician is unwilling, an external doctor must be permitted to provide the service. . .

HealthcareCAN [Full text]

Access to Care

Efforts will need to be made to ensure that access to physician-assisted dying and end-of-life care is reasonably similar across the country. There are many challenges in Canada with respect to the delivery of adequate health care in certain parts of the country. For instance, in many northern and geographically remote communities of Canada, there is an uneven distribution of healthcare providers.

Ensuring access to physician-assisted dying services will likely present similar issues. In some geographic areas and smaller communities, and in rural and remote regions, there may be a lack of providers who are willing and able to provide medical aid in dying. Inadequate training and the issue of conscientious objection by physicians may be factors. . .

Conscientious Objection

With respect to conscientious objection, the Supreme Court of Canada said that, "[n]othing in this declaration would compel physicians to provide assistance in dying. The Charter rights of patients and physicians will need to be reconciled in any legislative and regulatory response to this judgement." Although the Supreme Court was silent on the role of other health professionals, it is clear that respect for conscientious objection will be relevant for the range of health providers that may be involved.

HealthCareCAN believes that physicians who are unwilling to provide physician-assisted dying services must communicate their perspectives in a manner that respects patient dignity, with sensitivity and without expressing personal moral judgment. Further, patients should be provided with information about all options that may be available or appropriate to meet the patient's needs, concerns and/or wishes. Efforts should be made to explore all factors that contribute to intolerable suffering and seek ways to assist in alleviating suffering.

HealthCareCAN recognizes that there is some controversy with respect to the issue of "effective referral" to another provider. We know that some physicians working in some of our institutions are concerned about the requirement to provide an effective referral to a provider willing to provide physician-assisted dying. Although many physicians (who choose not to provide assistance in dying) will not have a problem with referral, for others, the provision of a referral may be viewed as a violation of moral integrity. To maintain an ongoing therapeutic relationship, a physician may prefer to provide further information about physician-assisted dying, rather than a direct referral.

As well, some physicians are concerned about having sufficient knowledge of referral pathways. Others are also concerned about the possibility of limited access to high quality end-of-life care and physician-assisted dying.

With these factors in mind, novel methods for referral and facilitating access may need to be explored in order to ensure access to physician-assisted dying and also respect for the right of a physician to conscientiously object. For example, the establishment of centralized bodies and information systems could be explored to ensure high quality information and continuity of care. The development of a separate and parallel system to provide information, counselling and referral that can be directly accessed by patients, families, health care professionals and institutions could be examined. . .

Hogan, Marcia [Full text]

6. Doctors must not abandon their patients at the end of their life. If they cannot assist with PAD then they must refer, either through a governing body, institution or simply by contacting a fellow physician. The same goes for pharmacists.

Hogg, Peter [Edited video]

Ms. Julie Dabrusin (Toronto—Danforth, Lib.):  . . . You've suggested creating a fulsome piece of legislation that can occupy the field when a province hasn't legislated. But, in the assisted reproduction case, the Supreme Court of Canada found that the pith and substance of legislation was deemed to be the regulation of the medical health profession.

So how can we create such fulsome legislation while avoiding that type of a finding?

Mr. Peter Hogg:  Because The Criminal Code at the moment prohibits the aiding and abetting of suicide and prohibits consent of the victim as some kind of defence to murder. Those provisions will remain in place, so if we are going to have exemptions from those provisions, they also have to be in the Criminal Code. And that would be the criminal law power legislating the safeguards suggested by the Supreme Courtm, never departing from the criminal law. And so that's the difference. . .

Inch, Carolyn [Full text]

6. Doctors have the right of conscientious objection but must provide information and effective [sic] another doctor or a third-party referral agency. . .

7.Publicly funded healthcare institutions, including hospitals, hospices and long-term carefacilities, are required to provide physician-assisted dying on their premises. . .  All publicly funded healthcare institutions must allow PAD on their premises. If no doctors on staff are willing to provide, an external doctor must be permitted into the hospital to provide the service. This policy is especially relevant for small communities where healthcare options may be limited.

Johnson, Shirley [Full text]

-physicians should be able to opt out but must find the patient a willing practitioner.

Justice Centre for Constitutional Freedoms [Full text]

Recommendation 1: The new federal legislation should provide explicitly that physicians, nurses, pharmacists, and other health care workers, as well as health care organizations and institutions, can refuse to participate in, and refuse to refer for, physician-assisted suicide ("PAS") or euthanasia.

The Supreme Court of Canada decision in Carter v. Canada (Attorney General), [2015] 1 SCR 331 ("Carter") in no way compels doctors or other healthcare workers to cooperate unwillingly in a PAS. Carter was predicated on two key factual conditions: a willing patient and a willing doctor. The applicants in Carter all had willing doctors. They neither sought nor received a Charter right to compel doctors and other healthcare practitioners to provide, or refer for, PAS.

The Carter ruling does not positively obligate physicians or anyone else to add assisted suicide or euthanasia to their medical practices. The prohibition against PAS has been struck down as a violation of s. 7 of the Charter, but this does not confer on patients a right to require an unwilling doctor to assist with a suicide. The existence of a "right" of patients to require every physician to refer for every medical service is a misconception that some of the provincial Colleges of Physicians, as well as the Canadian Medical Association, appear to be operating under. . .

. . . Parliament should explicitly affirm in legislation that physicians, and all other health care workers, are not obligated in any way to participate in physician-assisted suicide or voluntary euthanasia, either in the act of killing itself, or in the process which might lead to such a killing, including referral. Parliament should affirm that the failure to so participate or refer does not infringe the rights of patients, and is not a reason for discipline or other sanction, either criminal, civil or professional. . .

. . .Medicine is one of many public spheres in which an individual can choose to work. The fact that a person provides services to the public, and the fact that some or all of those services are paid for directly or indirectly by government, does not remove Charter protection from individuals who serve the public. In particular, a person providing services to the public does not lose her Charter section 2(a) freedom of conscience and religion.

Recommendation 2: Parliament should enact legislative protections for medical practitioners in a substantially similar fashion to those contained in the Civil Marriage Act.

There is clear precedent for the protection of conscience rights for public service providers on the grounds of conscience and religion. In the Civil Marriage Act, SC 2005, c 33, specific protections were enacted for individuals and organizations who have a religious or moral belief that marriage is between a man and a woman to the exclusion of all others. . . .

. . . The same types of protections are necessary for medical practitioners in the wake of the Carter decision. In addition to protections for refusing to participate or refer for PAS, there should be no sanction or professional or legal penalty against medical practitioners for holding or voicing an opinion in regards to the ethics or morality about PAS. Similarly, such beliefs and their expression are not against the public interest.

As affirmed by the Supreme Court of Canada in Carter: "Health is an area of concurrent jurisdiction; both Parliament and the provinces may validly legislate on the topic." In this way, the issue of physician-assisted suicide is analogous to that in the Civil Marriage Act. Since Parliament enacted conscience protections when legislating same-sex marriage it should do so when legislating assisted suicide. . .

Recommendation 5: Parliament should note the constitutional infringements already apparent in the various guidelines released by the provincial Colleges of Physicians and the Canadian Medical Association, and codify the necessary protections in the pending legislation to prevent the erosion of practitioners' rights.

On January 16, 2016, the Canadian Medical Association ("CMA") released its "Principles-based Recommendations for a Canadian Approach to Assisted Dying" (the "Principles"). While the CMA appears to have made significant progress towards properly protecting the rights of physicians, specific Principles are excerpted to illustrate some remaining potential constitutional problems. . .

. . . In contrast with the College of Physicians of Ontario's position on referral, there is much to be applauded in the recently-released CMA draft guidelines against mandatory referral. The CMA has stated that, "the argument that only mandatory referral puts patients' interests first or respects patient autonomy - and that not making a referral does not - is fundamentally erroneous."

HHowever, the CMA appears to qualify the right of conscience on the ground of delay, as though a moral or ethical objection expires with the passage of time, or can be overridden if a patient considers it inconvenient. . .

. . . In practice, it is difficult to envision any scenario in the real medical world where a physician would be called upon to support a patient's decisions "no matter what." Physicians routinely disagree with, and withdraw their support from, a patient's decisions on a vast number of less significant medical decisions, ranging from a patient refusing to take medication to a patient refusing to exercise, to a patient refusing treatment. Why should a doctor's right to be a doctor (an honest counselor and a medical professional) in a PAS situation be any different? . . .

Oral submission [Edited video]

Mr. Jay Cameron (Barrister and Solicitor, Justice Centre for Constitutional Freedoms):

 . . . My second thought is that despite the fact that the Criminal Code provisions against physician-assisted suicide have been struck down, paragraph 241(b) and section 14 of the Criminal Code, the history of the medical profession remains, and it is deeply entrenched in the minds and the hearts of many physicians across the country. The Hippocratic oath, for example, is millennia old and still remains in use in various variations across North America today, while it has been discarded in some jurisdictions, yet the Hippocratic oath remains in use, and it specifically prohibited giving a patient poison or counselling another person to do so. So there are strong conscientious and religious objections that are held by many, many physicians across the country, and erasing two sections of the Criminal Code do not erase the way they feel about it and the way they believe about it. . .

. . . We submit that the new federal legislation should provide explicitly that physicians, nurses, pharmacists, and other health care workers, as well as health care organizations and institutions, can refuse to participate in and refuse to refer for physician-assisted suicide.

The Supreme Court of Canada decision in Carter in no way compels doctors or other health care workers to cooperate unwillingly in a physician-assisted suicide scenario. Carter was predicated on two key factual conditions: a willing patient and a willing doctor. None of the scenarios before the court in Carter involved an unwilling doctor. The existence of a right of patients to require every physician to refer for every medical service is a misconception that some of the provincial colleges of physicians, as well as the Canadian Medical Association, appears to be labouring under. Many doctors and other health care workers object to assisted suicide on ethical, moral, or conscience grounds, or on historical grounds for their profession, which does not negate the fact that their objection is one of conscience. The Supreme Court of Canada in R. v. Big M Drug Mart Ltd. made these comments:

Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free.... Coercion includes...indirect forms of control which determine or limit alternate courses of conduct available to others.

Our second recommendation is that Parliament should enact legislative protections for medical practitioners in substantially similar fashion to those contained in the Civil Marriage Act. In the Civil Marriage Act, specific protections were enacted for individuals and organizations who have a religious or a moral belief that marriage is between a man and a woman to the exclusion of all others. No citizen, because of the Civil Marriage Act, can be sanctioned for expressing or propagating or advocating for the belief that marriage is between a man and a woman. The legislation specifically states that it is not against the public interest to hold or advocate these beliefs, and we submit that this is an analogous situation. There is a jurisdictional overlap between the federal government and the provincial governments, and it brings it into line with the Civil Marriage Act situation. . .

. . . Parliament should note that constitutional infringements are already occurring, or are already suggested to occur, in the guidelines that are being released by the colleges of physicians across the provinces. It would be worth noting that the Canadian Medical Association has essentially said there should be a requirement to refer. It does not consider the referral for physician-assisted suicide as assisting in physician-assisted suicide. Additionally, it seeks to qualify the rights of physicians with respect to a delay component or a time component.

And, in our respectful submission, there needs to be a careful balancing of the rights of physicians versus those of patients, because the non-autonomous nature of a patient who requires the assistance of a physician calls into question the rights of the assistor. . .

Discussion of Canadian Medical Association Proposal [Edited video]

Hon. Judith G. Seidman: You've all talked about conscientious, the right of conscientious objection for the physicians, and clearly the question that comes forward is what is the best means is to ensure equity and access to assisted death for patients who want it, plus, of course,  reconcile that with the Charter rights of physicians with their conscientious objection.

The  CMA called for the creation of a separate central information, counselling, and referral system in their 2015 report on this subject, and I'm wondering what your reactions would be -  all three of you I put that question to you, to that kind of an approach. 

Ms. Wanda Morris (Dying With Dignity):  Our primary concern is that patients not be abandoned. And if that recommendation effectively allows for care to be transferred and patients to receive treatment, then we support it.

We do have concerns, though, about an independent agency without access to confidential information about who is providing assisted deaths to be able to carry out that function.  We're also really concerned that this shouldn't be outsourced outside of the medical system where an independent group perhaps has to fundraise to provide that critical service.

Hon. Judith G. Seidman: Mr. Paterson.

Mr. Josh Paterson:   Thank you. I'd echo everything that Ms. Morris just said.

And I would simply add to that that whatever body is there has got to be able to have the capacity to respond quickly. And, you know, this isn't something, where there should be backlogs and  “We're not going to get to it this week.” This needs to be done fast. So, whatever agency is there has to have a really robust responsibility to put the wheels in motion to ensure that the patients can get the care that they've asked for.

Hon. Judith G. Seidman: Mr. Cameron

Mr. Jay Cameron (JCCF):  I think that such a response is effective. I think it's favourable. And if properly implemented, I think it's the best solution.

Koch, Jule [Full text]

. . .This is not a matter of the person's choice. A person exercises their own choice when they kill themselves. As soon as they ask someone else to kill them, it ceases to be their choice and becomes the choice of the person who does the killing.

No one has a right to demand or attempt to force other people to do anything. People are not slaves, puppets or robots. If someone asks me to get them something from the refrigerator, I am free to refuse. . .

Kuchta, Gay [Full text]

. . .I do not think that Physicians and Institutions receiving tax payer's financial support should be allowed to opt out of PAD. If individual health care professionals cannot participate due to religious or cultural beliefs they must be required to refer the patient to other health care professionals who can and arrange free transportation. . .

. . . All tax payer funded health care professionals and institutions must be required to provide PAD or pay for patient access to service locally where available.

Leung, Constant MD [Full text]

. . . A distinct federal program with exclusive jurisdiction over physician hastened death, acting as an adjunct to our current health care system, is a logical, responsible, sensitive, respectful and practical solution that upholds rights and safety for all Canadians whether they desire a hastened death or not, enables effective access for patients who desire and are eligible for a hastened death, and protects freedom of conscience rights for health care professionals to the greatest extent possible. . .

4. Robust and thorough protection for a physician's freedom of conscience, in combination with a system of direct access to physician hastened death, provides an excellent safeguard. The truly competent patient would easily be able to access the federal service, while an ambivalent or vulnerable patient would have the benefit of having the physician continue to act as a health advocate.

Keep Hastened Death a Separate Service

A separate and federally regulated system for accessing physician hastened death would protect our current health care system, is an inherent safeguard that provides protection for patients who do not seek a hastened death, and still allows access to PHD. The system's initial role should be to help patients understand the difference between palliative care and physician hastened death. By maintaining the fundamental distinction between PHD and standard health care intervention, autonomy can be supported by allowing for a better informed choice. In contrast, the approach of integrating physician hastened death protocols into our present health care system, is unnecessary, unwieldy, unsafe, and will inevitably cause divisions in the health care system by compounding issues of conscience. . .

Lindstrom, Lena [Full text]

. . .Concerns about lack of access could also be partly alleviated by ensuring that all publicly funded medical institutions must provide the service when asked . . .

Living with Dignity [Full text]

III – (A) Protect freedom of conscience

With individual freedom at the heart of the argument for euthanasia and assisted suicide, we believe it vital that what we seek to give one person cannot be denied another. For many doctors and other people working in the health field, to end someone's life or to help them do so will always be a homicide—regardless of what the law says—and a democracy like Canada must respect this choice. Moreover, the act of referring a patient to a person or an institution that will agree to a request for euthanasia or assisted suicide is also still perceived by many doctors as being party to a homicide pursuant to section 21 of the Criminal Code.

With a patient's freedom of choice upheld in the argument for physician-assisted dying, it must be recognized that this choice cannot be achieved without another person's involvement. It is therefore not a purely personal choice. Thus, we must respect the freedom of others to choose to not participate in any way.

Should the government decide to legalize euthanasia or assisted suicide, we recommend that:

a. physicians and/or institutions and any health care staff member have the right to refuse to perform physician-assisted dying or participate in any way or to refer a request for physician-assisted dying to a person or an authority for action;

b. euthanasia or assisted suicide be performed by physicians only and prescribed by volunteer pharmacists who have received pre-certification;

c. a self-referral agency be created to receive requests for euthanasia or assisted suicide from patients directly so as to enhance their autonomy and discharge health care staff members who refuse to participate in the process of a voluntary death; . . .

Lovell, Jane [Full text]

Individual physicians should be able to decline to participate by making a referral to another physician who is willing to assist.

. . .Those who request assistance should also be able to elect where they wish to die, be it in a publicly funded healthcare institution or in their home. . .

. . . No physician should be obliged to participate in assisted dying beyond providing a timely referral to another physician prepared to offer assistance. . .

Lydon, Patrick MD [Full text]

. . .  my main concern, is that individuals with deep religious and moral beliefs, will try to prevent other Canadians from obtaining the right to choose death with dignity, even if they meet the criteria outlined by DWD. This would be a most tragic and regrettable development.

MacKay, John S. MD [Full text]

5.  Doctors have the right of refusal to participate because of conscientious objection, but they also have an ethical professional duty not to abandon their patient, and to arrange for transfer to another doctor or third party referring agency.  The Canadian Charter recognizes freedom of religion, but this implies freedom from religion, i.e., no one can deny someone else their rights based on a personal religious value. . .

  7.  Publicly funded healthcare institutions including hospitals, hospices, and longterm care facilities must be required as a condition of their funding to provide assisted dying on their premises.

Mandel, Ezra [Full text]

9. Physician assisted death should be guaranteed through the publicly funded healthcare system and institutions that refuse should see their funding removed.

10. There should be no “conscientious objection” clauses for physicians and pharmacists who refuse to honour a patient's request for a physician assisted death.

Marchand, Michelle [Full text]

. . . No one ever claimed that sufficient consensus was achieved to put an end to the debate. The fact remains that many people, including a number of physicians, continue to be opposed to this practice. The [Quebec] legislation in fact shows great respect for the right of health care workers to conscientious objection. . .

This question is all the more pertinent when one considers how often the Canadian Medical Association (CMA) had previously reiterated its firm opposition to all forms of physician-assisted dying. Even when the debate was at its heaviest in Quebec, the CMA did not waver, except to consult its members again and to conclude that the majority of comments were opposed to any opening up on this issue. But now the CMA has released a document addressing recommendations to the bodies responsible for giving effect to the Supreme Court decision. Surprisingly, this document repeats almost verbatim the criteria laid out by the Court for obtaining medical aid in dying. It merely clarifies the terms employed by the Court, and the only noticeable trace of opposition concerns conscientious objections. The College of Physicians and Surgeons of Ontario recently submitted a nearly identical proposal to the attention of its members and the public, requesting their comments. A considerable number of comments were received and are available online for consultation. However, not many comments focused on the meat of the debate. Instead, the matter of conscientious objection came up repeatedly, with many physicians objecting to the new obligation that would be placed upon them of transferring the patient if their personal convictions prevented them from fulfilling a request for physician-assisted dying.

What explanation is there for this about-face? I don't believe in miracles. I think that physicians, whose collaboration was taken for granted by the Supreme Court, have simply abdicated collectively and now see conscientious objection as the only way out left to them. You don't have to be a prophet of doom and gloom to predict an increase in the number of conscientious objections, which is something we sought to avoid in Quebec by making certain we had the cooperation of physicians throughout the process. . .

. . . Any new legislation adopted without real debate could be as unworkable as the legislation it replaces, due to conscientious objections on the part of physicians, among other reasons.