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How would an advance request for maid work · THE DAILY BRIEF

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  Speaker 1: Well, after years of delays, reviews, missed deadlines and mounting
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  Speaker 1: legal threats, the federal government has finally drawn its line
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  Speaker 1: on assisted dying. Tabled today, Bill C-41 formally closes the
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  Speaker 1: door on MAID for Canadians suffering solely from mental illness. However,
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  Speaker 1: it does allow Canadians to file an advance request for
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  Speaker 1: MAID as soon as they are diagnosed with an incurable condition,
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  Speaker 1: such as Alzheimer's or Parkinson's disease. Once submitted, the request
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  Speaker 1: does not expire but can be withdrawn immediately. at any time.
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  Speaker 1: To talk about all this, we're joined now by the
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  Speaker 1: Minister of Justice, Sean Fraser. Minister, it's good to see you, sir.
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  Speaker 1: Thanks for taking the time.
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  Speaker 2: Thanks for having me.
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  Speaker 1: It's a pleasure. This is a tough legal issue and
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  Speaker 1: a tough moral and personal issue that parliamentarians have been
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  Speaker 1: grappling with. But you've decided after two delays not to
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  Speaker 1: go ahead with MAID for mental illness. Why not look
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  Speaker 1: at models, for example, like in Europe, where they have
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  Speaker 1: put safeguards in place and allowed it to go in
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  Speaker 1: that direction? Why the total exclusions?
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  Speaker 2: Yeah, so look, thank you for the question. And we
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  Speaker 2: looked at examples around the world. But more importantly, we
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  Speaker 2: sought advice from people whose expertise was born and bred
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  Speaker 2: in Canada. This, as you pointed out, was a subject
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  Speaker 2: of a number of different studies, most notably perhaps the
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  Speaker 2: joint parliamentary study recently as between the Senate and House
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  Speaker 2: of Commons, to determine the appropriate path forward in advance
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  Speaker 2: of the March timeline, at which point in time the
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  Speaker 2: exclusion would have ceased to exist. we made a determination
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  Speaker 2: based not only on the final recommendation of the committee report,
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  Speaker 2: but on the reasons that underpinned those recommendations, which reflected
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  Speaker 2: the feedback that we heard through my office when we
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  Speaker 2: undertook a parallel exercise. And when there's a lack of
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  Speaker 2: consensus around the irremediable nature of mental illness, And there's
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  Speaker 2: a concern across Canada about access to mental health services
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  Speaker 2: at the community level. We've made the determination that the
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  Speaker 2: appropriate path forward is to maintain the existing exclusion, but
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  Speaker 2: to do so on an indefinite basis. There will be
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  Speaker 2: people who hold, reasonably, hold different points of view. But
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  Speaker 2: based on the evidence available to me and the advice
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  Speaker 2: of the committee who studied the issue in depth, we
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  Speaker 2: determined this was the best path forward.
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  Speaker 1: But, you know, several years ago, the government was going
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  Speaker 1: to do this. The decision was to delay this, and
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  Speaker 1: to quote your predecessor, David Lamedi, it was essentially to
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  Speaker 1: allow the system to prepare for the administration of this,
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  Speaker 1: not to reconsider the expansion to mental illness and AIDS, right?
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  Speaker 1: He said it would help ensure health care system readiness by,
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  Speaker 1: amongst other things, allowing more time for the dissemination and
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  Speaker 1: uptake of key resources by the medical and nursing communities.
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  Speaker 1: So a lot of people, including senators and advocates for
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  Speaker 1: this expansion, took that as a promise that they would
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  Speaker 1: be allowed to go ahead with this. Is this a
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  Speaker 1: broken promise to those people with this shift?
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  Speaker 2: Well, I don't view it that way. And with enormous
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  Speaker 2: respect to people who were advocating for a particular change
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  Speaker 2: that they hope to see in this legislation, during the
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  Speaker 2: intervening period prior, since the comments you have quoted and
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  Speaker 2: before today, there was a decision taken specifically to establish
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  Speaker 2: the group as between senators and representatives in the House
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  Speaker 2: of Commons. for the purpose of producing a recommendation with
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  Speaker 2: full knowledge that the timeline contemplated by the criminal code
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  Speaker 2: would have expired in March, which would have automatically expanded
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  Speaker 2: the regime compared to what exists today. We wanted to
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  Speaker 2: take the advice from that committee seriously. But in addition
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  Speaker 2: to the advice of that committee, I wanted, as the
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  Speaker 2: person responsible for some of these decisions, to undertake an
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  Speaker 2: exercise of my own. And the advice that we received,
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  Speaker 2: though there were mixed perspectives, led me to the same
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  Speaker 2: conclusion that the Joint Parliamentary Committee found, which is that
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  Speaker 2: at the appropriate time, again, on the basis of lack
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  Speaker 2: of access to mental health services across Canada and on
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  Speaker 2: lack of consensus on the irreversible nature of mental illness,
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  Speaker 2: We've determined to maintain the exclusion. It's a difficult issue.
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  Speaker 2: It's a personal issue. But we believe this is the
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  Speaker 2: right path forward, certainly at this point in time.
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  Speaker 1: Yeah, certainly. I'm not trying to suggest it's an easy
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  Speaker 1: one because I think about this and I don't know
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  Speaker 1: what the right approach is necessarily because you can see
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  Speaker 1: various points and various arguments. But there's going to be
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  Speaker 1: legal arguments about this, right, because legal experts and you've
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  Speaker 1: got advocacy groups such as Dying With Dignity, they argue
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  Speaker 1: that this outright ban essentially violates charter rights. Do you
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  Speaker 1: expect that ultimately the Supreme Court is going to have
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  Speaker 1: to settle this?
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  Speaker 2: Well, my own view is that the legislation is constitutionally compliant.
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  Speaker 2: Of course, that's my view. We will be producing a
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  Speaker 2: charter statement, as we do with different pieces of legislation
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  Speaker 2: that could engage the charter. But I don't view that
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  Speaker 2: to be the likely conclusion. Of course, one of the
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  Speaker 2: beautiful things about living in a democracy is having governments
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  Speaker 2: that respect the rule of law. We have the opportunity
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  Speaker 2: for ordinary Canadians, if they feel the rights have been infringed,
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  Speaker 2: to make complaints before the courts. Canadians will maintain that ability,
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  Speaker 2: of course, going forward on this and other issues. But
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  Speaker 2: my own view, having considered it personally, having reflected on
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  Speaker 2: the advice of the Is it the legislation that we
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  Speaker 2: put forward is constitutionally compliant, despite the fact there may
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  Speaker 2: be some people who disagree with it?
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  Speaker 1: You'd probably anticipate a legal challenge, though. I think that
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  Speaker 1: seems inevitable.
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  Speaker 2: There are existing legal challenges. We don't have to assume
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  Speaker 2: the future may hold.
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  Speaker 1: No, but to this specific piece of legislation, do you
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  Speaker 1: think that might happen, or do you think the other
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  Speaker 1: ones would cover that?
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  Speaker 2: Well, keep in mind the exclusion that we have now
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  Speaker 2: baked into legislation indefinitely. It exists today. There are challenges
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  Speaker 2: that concern the exclusion that exists that may have expired
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  Speaker 2: in March of next year if no action was taken.
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  Speaker 2: So I expect they will continue on the track that
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  Speaker 2: they're on. But my view is not to kick this
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  Speaker 2: down for the courts. It's to do what I believe
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  Speaker 2: is right in the circumstances. And if Canadians disagree with
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  Speaker 2: that point of view, then they're free to make their
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  Speaker 2: legal arguments. but my decision was not, and the government's
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  Speaker 2: position was not informed by the fact there may or
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  Speaker 2: may not be legal challenges. We're trying to determine what's
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  Speaker 2: right from a moral point of view more than one
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  Speaker 2: that protects us against litigation.
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  Speaker 1: Well, the other component to this is the advanced directive provision, right,
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  Speaker 1: where you're allowing people to give the advanced directive. For example,
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  Speaker 1: if you're diagnosed with something like Alzheimer's where later, the
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  Speaker 1: late stages, you may not be able to do that,
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  Speaker 1: But it's going to be incumbent on the provinces to
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  Speaker 1: sort of accept that as a legal option for people
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  Speaker 1: in their jurisdictions. Alberta said they weren't going to do it.
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  Speaker 1: Now they may reconsider it. But does that not create
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  Speaker 1: a potential for a patchwork approach across the country if
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  Speaker 1: some provinces, for various reasons, decide to opt out of
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  Speaker 1: this and will have one set of standards in different provinces?
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  Speaker 2: Yeah, look, thanks for the question. It's an obvious concern
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  Speaker 2: that you've got to turn your mind to. And I
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  Speaker 2: think you've got to keep in mind what this legislation
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  Speaker 2: is actually doing. This is an amendment to the criminal code.
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  Speaker 2: Someone who provides medical assistance in dying in the absence
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  Speaker 2: with an advance directive today would be committing a crime.
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  Speaker 2: We want it to amend the criminal code so health
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  Speaker 2: care providers can undertake a process that has rigorous safeguards
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  Speaker 2: in place and to no longer treat those health care
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  Speaker 2: providers as criminal for the purpose of the criminal code.
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  Speaker 1: Right.
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  Speaker 2: One of the challenges that requires us to engage with
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  Speaker 2: provinces is that we didn't set out to establish a
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  Speaker 2: new medical services regime. We wanted to amend the criminal liability.
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  Speaker 2: But in order to put some of those rigorous safeguards
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  Speaker 2: I've mentioned in place, you very quickly find yourself in
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  Speaker 2: the space of creating a repository where provincial governments can
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  Speaker 2: collect health care information, the actual advance request itself with
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  Speaker 2: the conditions included, and require them to maintain that so
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  Speaker 2: you know if a person withdraws their consent that something
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  Speaker 2: would not be valid before a procedure actually takes place.
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  Speaker 2: This quickly invites constitutional considerations about the division of powers,
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  Speaker 2: and we want to move forward in a way that
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  Speaker 2: respects and protects provincial authorities when it comes to the
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  Speaker 2: delivery of health services. This is not a conversation that
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  Speaker 2: the federal government can have unilaterally and put in place
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  Speaker 2: a system that engages those obvious concerns authorities that are
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  Speaker 2: held by provinces. So we've made the decision to take
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  Speaker 2: care of what's within our jurisdiction, the criminal code, but
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  Speaker 2: tie the permissibility under the criminal code to the existence
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  Speaker 2: of a provincial system that includes certain rigorous safeguards.
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  Speaker 1: But just a quick question as a final point. The
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  Speaker 1: collision of that, what happens, this is a hypothetical, but
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  Speaker 1: you have to consider this when drafting legal frameworks. It's
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  Speaker 1: decriminalized by this legislation, but if a province doesn't allow
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  Speaker 1: for advanced directives, If a medical practitioner honors an advance
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  Speaker 1: directive in a jurisdiction that doesn't recognize them, honors the
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  Speaker 1: wishes of the person, what happens to them should they
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  Speaker 1: choose to proceed with it?
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  Speaker 2: So it'll depend on a very specific set of facts,
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  Speaker 2: of course, because today there's many health services where you
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  Speaker 2: may have access across a provincial boundary for a number
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  Speaker 2: of different reasons, and typically that's sorted out as negotiations
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  Speaker 2: between the provincial health authorities or potentially the insurers.
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  Speaker 1: But in a jurisdiction that doesn't allow advance directives, because
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  Speaker 1: it is a non-criminal act, if they honour the advance directive....
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  Speaker 2: If you are dealing with a scenario where there has
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  Speaker 2: not been an agreement between provinces to have the costs covered,
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  Speaker 2: for example, and someone absent the protections that the criminal
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  Speaker 2: code insists upon, of course that would be treated as
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  Speaker 2: a criminal offence. But keep in mind, we do expect
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  Speaker 2: that provinces and healthcare providers and all Canadians to follow
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  Speaker 2: the criminal law, but there's not a way, in my view,
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  Speaker 2: to legislate the protections that we need in place without
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  Speaker 2: engaging the authorities of the provincial governments. So this was
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  Speaker 2: not a decision to create a political controversy in provinces.
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  Speaker 2: This was a desire to move forward in a way
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  Speaker 2: that necessarily respected the provincial authorities that are at issue.
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  Speaker 1: Okay. Minister of Justice Sean Fraser, we're out of time.
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  Speaker 1: Thanks so much for coming in today.