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15 December 2015 External Panel on Options for a Legislative Response to Carter v. Canada Comité externe sur les options de réponse législative à Carter c. Canada 15 December 2015 External Panel on Options for a Legislative Response to Carter v. Canada Comité externe sur les options de réponse législative à Carter c. Canada 15 December 2015 The Honourable Jody Wilson-Raybould Minister of Justice and Attorney General of Canada 284 Wellington Street Ottawa, Ontario K1A 0H8 The Honourable Jane Philpott Minister of Health Health Canada 70 Colombine Driveway, Tunney’s Pasture Ottawa, Ontario K1A 0K9 Dear Minister Wilson-Raybould and Minister Philpott: We are pleased to provide you with a copy of our report summarizing the results and key findings of our consultations in Panel on Options for a Legislative Response to Carter v. Canada. We thank you for the confidence fulfillment of the mandate of the External that you placed in us and for the opportunity to serve such an important cause. With great deference to the Supreme Court of Canada and for the supremacy of Parliament to ultimately decide how Canada will respond to this historic ruling, our goal was to bring the results of our work to the minds of Parliamentarians. We support your efforts to make Canada not only a better country to live in, but a better country to die in. From the outset we set about to enrich the debate around physician-assisted dying. We tried to stay true to our task by listening well and listening from a position of empathic neutrality. We would like you to know that our meetings across Canada and internationally have been rich in content, respectful in tone, and broad-reaching in consequence. Our hope is simply that the insight we received over the course of our work is reflected in our report. Following your consideration, it is our expressed desire that this report will be made publicly available in the same spirit of transparency and openness that interveners, stakeholders and indeed Canadians greeted us. We will gather as a Panel for a final time on December 17, 2015. Our objective for that meeting is twofold. Firstly, we want to assure a smooth and formal transfer of all materials to government and, secondly, to identify the key steps required for ceasing Panel operations. Any mistakes and oversight in the following pages are our own. We offer our report with hope that it is useful to you and your Parliamentary colleagues as you undertake the next crucial stage of this conversation. We remain grateful for the rich experience and for the honour it has been to serve. Respectfully, Dr. Harvey Max Chochinov, O.C., O.M., M.D., Ph.D., FRCPC, FRSC, Chair Professor Catherine Frazee, O.C., D.Litt., LL.D., Panel Member Professor Benoît Pelletier, O.Q., FRSC, Ad. E., LL.D., LL.D., LL.D. (hon.), Panel Member cc: Stephen Mihorean, Executive Director, Secretariat to the External Panel on Options for a Legislative Response to Carter v. Canada. Table of Contents Executive Summary ___________________________________________________________ iv Panel Member Biographies ____________________________________________________ viii Foreword ____________________________________________________________________ 1 Part I – Introduction ___________________________________________________________ 7 Chapter 1. The External Panel _____________________________________________________ 7 Mandate _____________________________________________________________________________ 7 Consultations with Interveners and Medical Authorities _______________________________________ 8 Expert and Stakeholder Consultations ____________________________________________________ 11 Consulting the Canadian Population ______________________________________________________ 11 Learning from other Jurisdictions ________________________________________________________ 14 Provincial and Territorial Jurisdictions ____________________________________________________ 16 Reporting ___________________________________________________________________________ 16 Part II – Relevant Legal Context ________________________________________________ 17 Chapter 2. Division of Federal and Provincial/Territorial Powers ________________________ 17 The Federal Role in Health _____________________________________________________________ 17 The Provincial Role in Health ____________________________________________________________ 18 Concurrent Jurisdiction ________________________________________________________________ 18 Chapter 3. Relevant Sections of the Charter _________________________________________ 20 Section 7: The Right to Life, Liberty and Security of the Person ________________________________ 20 Section 15: Equality Rights _____________________________________________________________ 26 Section 33: The Notwithstanding Clause __________________________________________________ 28 Chapter 4. International Law _____________________________________________________ 30 Chapter 5. Carter v. Canada ______________________________________________________ 31 The Context _________________________________________________________________________ 31 The Claimants ________________________________________________________________________ 32 The Criminal Code ____________________________________________________________________ 34 The Lower Court Decisions _____________________________________________________________ 34 The Supreme Court Decision ____________________________________________________________ 36 The Effect of the Decision ______________________________________________________________ 43 Part III – A Report on the Panel’s Consultations ____________________________________ 44 Chapter 6. Forms of Assisted Dying and Terminology _________________________________ 44 Voluntary Euthanasia and Physician-Assisted Suicide: Terminology _____________________________ 44 Other Observations on Terminology ______________________________________________________ 46 Methods of Physician-Assisted Dying _____________________________________________________ 48 Conclusion __________________________________________________________________________ 51 i Chapter 7. Eligibility Criteria _____________________________________________________ 52 Age ________________________________________________________________________________ 53 Residency ___________________________________________________________________________ 56 Grievous and Irremediable Medical Condition ______________________________________________ 57 Enduring Suffering ____________________________________________________________________ 61 Capacity to Consent to Medical Treatment ________________________________________________ 64 Voluntariness ________________________________________________________________________ 69 Chapter 8. The Request _________________________________________________________ 72 The Request Must Emanate from the Patient ______________________________________________ 72 Point of Entry for the Request ___________________________________________________________ 73 Form of the Request __________________________________________________________________ 74 Witnesses to the Request ______________________________________________________________ 75 Role of Family ________________________________________________________________________ 77 Chapter 9. Assessing the Request _________________________________________________ 79 Medical Assessments __________________________________________________________________ 79 Contributions of Allied Health Professionals _______________________________________________ 82 Informed Consent ____________________________________________________________________ 88 Timelines ___________________________________________________________________________ 89 Chapter 10. Determination of Requests _____________________________________________ 92 Prior Judicial Authorization _____________________________________________________________ 93 Prior Authorization by Administrative Tribunal _____________________________________________ 94 Physician-Assisted Dying Panel __________________________________________________________ 95 A Decision between Individuals and their Physicians _________________________________________ 96 Chapter 11. Participation and Compliance ___________________________________________ 98 Conscience Protection _________________________________________________________________ 98 Training and Licensing ________________________________________________________________ 102 Violations and Penalties ______________________________________________________________ 103 Good Faith Compliance Protections _____________________________________________________ 105 Providers’ Concerns over Criminal Offences not Addressed in Carter __________________________ 107 Chapter 12. System Oversight ____________________________________________________ 109 Oversight Body ______________________________________________________________________ 109 Anonymized Data ____________________________________________________________________ 114 Which Data Should be Collected and from whom? _________________________________________ 115 Reporting Timelines __________________________________________________________________ 116 Death Certificates ___________________________________________________________________ 117 Open Data and Targeted Funding _______________________________________________________ 119 Periodic Review of Legislation __________________________________________________________ 119 Enforcing the Obligation to Report to an Oversight Body ____________________________________ 120 Part IV – End-of-life
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