February 26, 1993


Motion agreed to, bill read the third time and passed.


CRIMINAL CODE


The House resumed from Thursday, February 25, consideration of the motion of Mr. Beatty that Bill C-109, an act to amend the Criminal Code, the Crown Liability and Proceedings Act and the Radiocommunication Act, be read the second time and referred to a legislative committee in the Departmental envelope.


LIB

Russell Gregoire MacLellan

Liberal

Mr. Russell MacLellan (Cape Breton-The Sydneys):

Mr. Speaker, it is my privilege today to be able to speak on Bill C-109 and reply to the Minister of Communications who delivered the speech on behalf of the Minister of Justice.

For the most part this bill includes some very good stipulations. I look upon this bill as really being in two parts. The bill deals with the police use of electronic surveillance methods and introduces protection of radiobased communications and cellular phone calls.

First, we are dealing with the electronic surveillance methods of the police, and second, we are dealing with the protection of radio-based communications.

With respect to the police use of electronic surveillance methods, there really is not much of a problem. There really is a need to make some changes in this regard to allow the police to be able to do their work. Some of the problems I have are in the area of radiobased communications.

However, it is our hope in the Liberal Party that the bill will get second reading so that it can go to a legislative committee. Then we can have the witnesses and the expertise before the committee that we need to really answer some of our concerns, and certainly some of the concerns that I have.

Government Orders

I would first like to deal with the first aspect of the bill concerning electronic surveillance methods. This part was formulated in response to three Supreme Court decisions in 1990, the Wong case, the Duarte case and the Garifoli case, and the Wise decision in 1992. The Minister of Communications outlined these cases yesterday in his speech so I will not go into the details.

As a result of these decisions the police found that they were severely restricted in their use of electronic surveillance and have been urging government since that time to update legislation in such a way as to once again permit the use of traditional surveillance.

Bill C-109 does this in four main ways. First, it allows the police to use electronic surveillance where there is a potentially dangerous situation.

Second, it allows judges to authorize such surveillance with the consent of one of the parties involved in the surveillance.

Third, it allows judges to issue similar authorization in other circumstances where it is clear the request for authorization meets the tests prescribed in the charter.

Fourth, it streamlines the procedure in the Criminal Code for introducing evidence obtained by electronic surveillance.

Reinstatements, police and undercover agents use these electronic lifelines. Conversations are recorded and used from these lifelines only if the surveillance is for the protection of bodily harm.

There are limits that are placed upon the evidentiary use of such material. For instance, it cannot be used to prosecute other crimes. That is fairly straightforward and it makes a lot of sense.

I think the police are supportive of this legislation. They have been pressing for changes. They believe that electronic surveillance is vital for fighting organized crime and drug rings in particular, and there is a good deal of justification in what they are saying.

As well, authorized public agents and others who assist these police and undercover agents, for instance landlords who permit entry to a residence, would be afforded protection from civil and criminal liability. This is meant to prevent litigation chill from deterring law enforcement.

February 26, 1993

Government Orders

Judges can also authorize use of video surveillance and tracking devices in circumstances where audio surveillance would be permitted. One could say that with these recommendations in this part of the bill better use will be made of the judge's time with respect to issuing authorization warrants and evidentiary rules. This is in response to what the Supreme Court called the "procedural quagmire" with respect to the above.

The definition of private communication is changed in two ways. Either the originator or the receiver would have to be in Canada and scrambled radio communications would also be covered.

I would like to state a couple of things that the minister said yesterday in his speech which I think are important. He said that the primary purpose of these amendments is to permit the use of technology by police forces in the performance of their duties, but only in a way that does not contravene the Canadian Charter of Rights and Freedoms. That is very significant. I can support what the police want to achieve if I feel that the charter is being respected.

I do not think anyone in this country wants to frustrate the police in their duties. Goodness knows, they are having a difficult time as it is. We have to ensure that while we are giving the police the means to be able to do this we are not interfering with the rights of the Canadian public. I do not think we are. If we are I do not think we have to. We can counteract that. I want to repeat, that is my concern.

The minister feels that the amendments would have the effect of simplifying the rules of admissibility of evidence. They would also increase the effectiveness of both the police and the Crown prosecutors in accordance with the recommendations of the Supreme Court. We are talking about the resources police officers need to perform their duties satisfactorily. I do not think anyone could quarrel with that.

We need good testimony to reinforce that. I want eveiyone to know that we in the Liberal Party support the police in this area. I think it is very important that we work toward that.

I would like at this point to move on to what I consider the second part of the bill, about which I do have some concerns. This part would create an offence of intercepting maliciously or for gain communications over cellular

phones. The maximum penalty would be five years. It would also be an indictable offence to wilfully disclose the existence or contents of intercepted cellular phone calls without the consent of one of the parties to the call. A maximum sentence would be two years.

Under this bill it would also be an offence to divulge or make use of cellular phone calls, faxes and computer signals carried on certain frequency radio waves. It would be a summary offence with a maximum fine of $25,000 or one year for individuals and $75,000 for corporations.

Victims of divulged communications could sue the divulgers for unlimited damage. I think you can see where this is going. It is going into sort of a grey area, an area of concern. It is not that the idea of what the government may want to achieve is not laudatory, it is just very confusing and somewhat misled.

The bill tries to give radio communications similar protection as is now given to other private communications as required by recent technological advancements. These amendments recognize that radio waves can be used for more than voice transmission. They would eliminate the loophole in cases where intercepted communication is not a voice transmission.

There have been criticisms already of this part of the bill and I think with some justification. The Canadian Association of Journalists strongly opposes this because it believes the bill severely hinders freedom of expression. This particularly refers to sections which cover cellular phone conversations. They believe the government is trying to protect business interests of cellular phone companies that pay the government millions of dollars in licensing fees. I think that is an aspect which is worth considering.

These cellular phone companies are very prosperous and would have the money to lobby hard for such legislation. As people become more aware that conversations on cellular phones are happening via public radio waves, these companies may lose business.

It is to their advantage to protect the privacy of their customers. In that, the government is taking the ball and running in the direction pointed to by these companies. Politicians and governments are major users of cell telephones. You could say that perhaps it is a self-interest, that government and politicians simply want then-indiscretions to remain confidential. I think that would be a little simplistic.

February 26, 1993

The media will suffer from a bad case of "libel chill" if such legislation is passed. I think that is of concern to them and I can see why it would be. They would be sued if they used information gleaned from conversations which took place over cellular phones.

The Canadian Association of Journalists argues that cellular phones are not regular phones and should not be viewed as such. They are simply sophisticated CB radios. As the Minister of Communications said, the cellular phone is not a cellular phone at all, it is a radio. Every conversation is a radio broadcast transmitted on radio waves. Every conversation unless specially treated can be monitored by anyone with a scanning device.

He said this last December and essentially he reiterated in his speech yesterday. What happened between then and now? What happened when he made this statement? One can only speculate as to the arguments, to the considerations and so on that is now making him a champion of the privacy rights of the cellular phone users.

In the United States, if I may look to that country for a moment, the situation has been handled somewhat differently. In the United States scanners are illegal. In Canada there are far fewer scanners than there are cellular phones and cordless phones, which by the way are also susceptible to interception.

The Minister of Communications has decided that it is easier to stifle freedom of expression than to ban radio scanners, perhaps because the owners of radio scanners are individuals who do not wield the clout of large cellular phone corporations.

As I have stated, the Liberal Party will support this bill on second reading because we want the information and the dialogue that the legislative committee can give. We want it very much to have good competent witnesses to give this the closer examination that we feel this bill needs.

For my part, my criticism of the bill centres around the sections dealing with cellular phones. The bulk of the legislation does address electronic surveillance. Police have been asking for such legislation. The latter is important and must be dealt with in light of the recent Supreme Court rulings.

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The whole bill warrants close scrutiny. With respect to the cellular phones and the cordless phones, we have to examine this a little more at this time to bring forward more of the potential problems that can arise.

This bill will also allow victims to obtain injunctions and sue for unlimited damage in the civil courts. The bill not only prohibits disclosure of the contents of the cellular phone conversations to anyone under any circumstances, it also bans disclosure of the existence of those conversations even though it is perfectly legal to monitor unscrambled radio-based conversations.

While we can monitor radio-based conversations, the Minister of Communications is saying that cellular phones and cordless phones are in fact radio receivers. We are saying an orange is not an orange, an orange is an apple here. I have a little problem with that and I do not know how that is going to be projected legally in the courts.

I also feel that Bill C-109 would certainly protect the commercial interests of cellular phone companies that pay government millions of dollars every year for their licensing fees. I am also concerned that they are going to be shielded from the consequences of the indiscretions they commit on the airwaves and the lack of work that needs to be done if the right course of direction were taken.

We also have to look at a bench-mark here, and that is what we are trying to achieve with the restrictions on cellular phone conversations. First, we have to ask is this the right direction to take? Second, are we not asking a question here that the price is going to be far too high for what we want to achieve? I am concerned that we are doing just that, that we are really infringing on the rights of Canadians for the wrong reasons if there ever are right reasons for something like this.

It is very important to understand that there are one million cellular phone subscribers in Canada as well as several million cordless phones. They can be very easily monitored.

The Minister of Communications says it is unreasonable to ban the scanners. The Americans were able to do it. I do not agree with everything that the Americans do but I just do not see the unreasonableness of banning scanners.

February 26, 1993

Government Orders

We are saying you cannot listen in on cellular phone conversations, use the information that you hear in those conversations, transpose it or relay it to somebody else who can use the information but we should not ban the scanners.

I do not agree. Please do not get me wrong. I do not condone eavesdropping, I do not condone the infringement of privacy. I do not condone the malicious utilization of private information for public or private gain, but I do think we have to move in the right direction. If we do not, then we are not correcting the problem, we are misleading the public. I think that would be a very sad thing to do and certainly something I do not think the government is intending.

Once again I would like to look at what the minister said. As reported at page 16492 of Hansard:

The second amendment included in Bill C-109 is close to my own heart and deals with the issue of cellular radios and personal privacy. Not long ago The Financial Post conducted an experiment listening to cellular conversations on an easily obtainable inexpensive scanner. In a brief period of time the Post intercepted calls made by stockbrokers, real estate agents, federal bureaucrats, police and others. The subjects varied from the mundane to the illegal, everything from what to serve for dinner to where to conduct a drug transaction.

He goes on to say in another situation:

During one two-hour session The Edmonton Journal heard one caller give his credit number over cellular, one woman give her address to a date, several intimate conversations and numerous business telephone calls. Another caller mentioned by name a man recently diagnosed with terminal cancer. It is possible the Journal reporter knew about this before his next of kin.

Then he goes on to say that privacy is disappearing and Canadians are worried about it. There is no question that privacy is disappearing. I want to know whether the provisions regarding cellular phones are going to change that.

I do not know how many newspapers the minister has contacted about their listening in on cellular phone conversations. I do not know if there has been a program to determine this or what. I, frankly, do not appreciate the government cavalierly discussing this with newspapers as if this is some kind of survey. I think it is much more serious than that.

Whether you make it illegal or not, there is nothing in this section that is going to stop the abuse. Sure, you can say to someone that they cannot listen to another person's phone conversation, that they cannot benefit from it, that they cannot pass it on to somebody else, but how in heaven's name are you going to prove it? If something is picked up on a cellular phone conversation and used, chances are you are never going to know that it was picked up and, if you do know, you are never going to know by whom. Chances are that the person who picks it up is not going to tell everybody that they have done it. The ones who will be punished are the ones who somehow are known through their conversations with other people that this has happened.

The problem is that it is not addressing the abuse. There are many ways to get away from it. It will be done day after day after day. Those who do it, maybe for a reason much more bona fide than most, may be caught and charged.

What we want here, surely to heavens, is to give Canadians the sense that their privacy is not being invaded and that this abuse is going to be corrected. It is not going to be corrected by giving them the false sense of security that their cellular phone conversations are going to be secure because they are not going to be secure, not by a long shot.

Most people in Canada are not technically sophisticated on the operation of a cellular phone. They do not realize that every phone call they make can be picked up by scanners, of which there are 900,000 in Canada. A lot of people are just interested in what other people say.

The reason we got away from the party line was because we did not want people listening in on our conversations. You did not know if your neighbour was telling people what he or she heard, but you knew that he or she did hear your conversations. It was an invasion of privacy. This is going to be much worse than a party line because everybody is going to be your neighbour, everybody, and you are not going to know it. Moreover, with the party line you could at least hear clicking at the other end so that you knew somebody was on the line. I know how to do it, yes. I have been on a party line, I have got this down pat. The point is that you at least had a little tip-off. But here there is no tip-off.

February 26, 1993

People are being led to believe that this legislation is going to protect them. It is almost a legislative entrapment to put this forward in its present state. I think we are going to have to really examine this and make some changes.

I want to quote what the minister said: "We found that the majority of Canadians feel they have less privacy today than they had a decade ago. There is a sense that personal privacy is under greater pressure today than used to be the case". I could not agree more.

He also said: "Briefly, the principles are as follows: Recognition: privacy is a right, respect it; informed choice: users must be aware of privacy implications and services they are offered. The truth is the cellular phone is not a telephone at all. Every conversation is a radio broadcast transmitted into the air on radio waves and is very public indeed". He is reiterating what he said at first reading, that these are not telephones, they are radios and we are utilizing the radio airwaves which are open to everyone.

It is a radio but it is not a radio because the government says it is not a radio. It is like saying February in Ottawa is summer and it is not cold. You cannot just by legislation make reasonable designations that are going to be helpful to the Canadian public. I think we have to look at the reality and that is this is not going to work.

The minister also said: "I have asked my department to work on a media campaign which will help to transmit our message". I have a problem here in that the message that the government wants to transmit is not the correct message. It is going to say that you are not allowed to listen to a person's conversation and if you do, you can be charged both criminally and in civil court for unlimited damages. If you pass it along to somebody else you can be charged civilly for unlimited damages.

That is not the point. The real message here is that cellular phone conversations are not safe and nothing in this bill is going to make them safe. That is what Canadians need to know.

If it wants to pass on other messages, fine, that can be an ancillary message, a footnote or a matter of opinion,

Government Orders

but that is all it can be, a matter of opinion. We are not acting in the best interests of the Canadian public by spending millions of dollars to tell Canadians about their rights on cellular phone conversations which are not effective.

The minister then went on to say: "This brings me to the third critical element of our strategy which is prosecution. There is nothing particularly damaging about listening to someone else's conversations. However, when a third party uses that information or passes it to another party, irreparable damage can take place. Canadians need to have legislative tools to defend themselves against invasions of their privacy. Give them these tools. The Minister of Justice and I are proposing complementary amendments to the Criminal Code and the Radiocommunications Act. First of all these amendments will deem all encrypted radio based communications to be private and protected by the full strength of the law. Second, the proposed changes to the Criminal Code will prohibit malicious and profit-motivated interception of any radio-based telephone communication. Anyone who deliberately intercepts communications with the intention of harm or any other motive of securing a financial advantage should be subject to prosecution".

It is not satisfactory to tell people that they are going to be prosecuted for something that is not going to secure their rights in the first place. It is awfully difficult to tell somebody they violated a law when everybody else who wants to do it, or 90 per cent or 80 per cent of those who want to do it, are getting away with it. Because they blabbed, because they could not stand that no one knew that they had committed the first perfect crime and had to tell people, they are charged.

We may get some transgressors but we are not dealing with the problem. We have to ban the scanners. We have to garble the message somehow. You have to at least be able to know when someone is intercepting your call and you have to tell people that this means that communication is not safe, at least not yet.

This is a very unsettling portion of the legislation with which I have some problems.

February 26, 1993

Government Orders

We will accept it on second reading because we want it to go to a legislative committee. It is not a good fact basis for law. I hope the government will consider this even before the committee meets and give consideration to making changes. If not then certainly our priority in committee will be scrutinizing this very carefully.

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   MEASURE TO AMEND
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NDP

Ian Gardiner Waddell

New Democratic Party

Mr. Ian Waddell (Port Moody-Coquitlam):

Mr. Speaker, I rise as justice critic for the New Democratic Party to speak on this bill.

My friend from Cape Breton-The Sydneys is correct in that the bill is divided into two parts. The first part deals with matters of wiretap and so on and concerns police officers and a few others.

The second part deals with cellular phones and the like. It worries me a bit that this bill, which is such an important bill on such an important issue that affects so many Canadians, is coming at the end of a dying Parliament.

We have to get at it for some reasons. It is mainly because the courts and the police require it. The Supreme Court has directed us to make amendments and the police require them to make life safer for them. At the same time we should not go too quickly because there are some rather immense issues involved.

Let me deal with the second part just briefly, the matter of the cellular phones. My colleague from the Okanagan, who is our communications critic, will deal with this in more detail but I could not help thinking of an occurrence when I was listening to the hon. member from Cape Breton.

Brian Smith, the former Attorney General of British Columbia, got caught using the cellular phone to talk to his girlfriend of the day. She happened to be a journalist at the time. He would have liked this bill. I was thinking about the two civil servants in Quebec who were caught criticizing their boss, Robert Bourassa, the premier of Quebec over the Charlottetown accord. They would have liked the bill as well.

I told the hon. member that when I was on the gun control committee, a member of the public called me and said: "I want to give you a tape". I was sent the tape. It had on it the private conversation of a Liberal member, not the hon. member who is in the House, from the committee with his assistant. They were basically bad mouthing me in my position.

I found it shocking, quite frankly. It was not so much that he bad mouthed me. That is part of the game and I

probably deserved it that day. What I found shocking was the fact that some unknown member of the public gave me this. I could get right into the private conversation of someone like that.

I did nothing with the tape. I got rid of it and forgot about it. I indirectly warned the member that he should be careful because what he says on a cellular phone can be picked up by others. That is what the hon. member for Cape Breton-The Sydneys was saying, that Canadians have to learn that these are radios. They are not really phones as we know them which are supposed to be private, even though they are wiretapped far too often.

I am particularly concerned about this. I read an article just a few minutes ago by Ms. Cristin Schmitz who is the Ottawa correspondent for The Lawyers Weekly and a member of the Canadian Association of Journalists. I am not sure which publication this comes from but I can let members see it. I think it is from The Hill Times. She says: "The Canadian Association of Journalists last week voted to oppose Bill C-109". She mentions this is a violation of freedom of expression. Here is the argument: "Bill C-109 will certainly protect the commercial interests of cellular phone companies who pay government millions of dollars every year for licensing fees", but will hurt people's freedom of expression, particularly the news media where there will be a chilling effect.

I quote: "We can anticipate future cases where reporters will receive highly newsworthy legally-intercepted information which they will only be able to print or broadcast if they are prepared to break the law".

The problem I see for the journalistic community, and I am one who has spoken loud and long for freedom of speech and freedom of expression, is that there have been a lot of abuses of intercepted cellular conversations.

In the Quebec case, that was in many ways an abuse. In the civil servants' case that was published, I think it was an abuse. Look at the conversations between Prince Charles and other people, Lady Di and other people and so on. There is a right to privacy. One of the problems that journalists are going to have to deal with is that they have in fact exploited for their own purposes, to sell newspapers and to make money or to broadcast and make money just like the cable companies make money. Have they gone over the line? Does freedom of expression run into people's violation of their rights to privacy? That is what we are going to have to look at in committee.

February 26, 1993

This is a serious matter and I anticipate some very lively debate. I hope that the Canadian Association of Journalists comes before the committee.

To summarize what the bill does in the second part, it is that the Criminal Code will be amended to enhance communications privacy over radio-based, that is cellular, telephones. In other words, it is going to treat the cellular phone like the regular telephone as a private communication. Second, it will prohibit the interception of radio-based telephone communications which are carried out maliciously or for gain. What is maliciously or for gain? They are pretty debatable words. They seem to be rather strange words to be put in legislation.

Third, it will prohibit the disclosure or other use of information obtained for the interception of communications between any remote unit primarily used for radiobased telephone communications and a base station. I gather that is the cordless phones and so on. It is indeed a problem. It is something that we will have to deal with.

I would like to deal now in some detail with the first part of the bill, which is the more difficult part. It seems less understandable to the average person. The second part is easier. It talks about cellular phones and people are instinctively interested because they know what is at stake.

This other one is important too. Let me try to put it in layman's language. Part one is responding to some court decisions. For example, the police hid a video camera to record illegal gambling in a hotel room. The court ruled that radio surveillance by agents of the state, that is by the police, without a judge's warrant or authorization violates section 8 of the Charter of Rights. The courts said that the police just could not do that. They needed to get a warrant in order to do it.

The bill permits electronic surveillance by the police where police and others are in potentially dangerous situations. It provides judges with the authority to authorize electronic surveillance where there is the consent of one of the participants and in other cases for serious crimes. It gives the power of the judiciary to issue a warrant in other circumstances where it is clearly indicated the request meets the test of the charter.

Government Orders

It changes the Criminal Code in a manner that streamlines and rationalize procedures necessary to admit in court evidence obtained from electronic surveillance. The bill deals with some of these cases.

Here is another case where the court instructed us to act. The police followed a man suspected of multiple murders. For several months, with the aid of an electronic tracking device hidden in his car, the police said that they used the device to gather evidence. They could hear what was going on in the car, and tried to prevent another killing. That is very important because there is a serial killer on the loose. You have a suspect, you put an electronic bug in the car and you might be able in that way to stop another killing.

The courts said yes, you could do that, but you had to get a judge's authorization. If you did not, that is an unreasonable search. While the courts want to allow the police to use the video camera, the electronic bugging and so on, they want to make sure that the police just do not do these things every time or any time they feel like it or with anybody they feel like. They want some control. That is why the police have to get a judge's authorization. They have to show to the judge reasonable and probable grounds why they should be allowed to do that. That in our society is the right balance; to balance someone's right to not be unreasonably searched, not to be spied upon, to have privacy, versus the right of the state and the police to catch crooks, to do what they are supposed to do, to enforce the law.

That is the balance we are looking for and that is why I believe we have to pass these provisions of the bill. I want to hear in committee from the Canadian Bar Association, defence lawyers and people who have day-to-day experience in courts and in the streets with electronic bugging and with wire-tap evidence. I think we need that information before this House can fully agree to this bill. That is why today, or whenever we have the vote on second reading, my party will let the bill go through on division to the committee where we will consider it clause by clause and we will consider these issues.

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There is one other thing I want to mention. I do not have to refer to the individual cases, the Duarte case, the Wong case, the Garifoli case and so on. The hon. member for Cape Breton-The Sydneys did that. I want to put the rather unusual position, which was put very well in an article in the Globe and Mail on November 17, 1992, by Peter Moon who was writing about this issue.

He said: "Ottawa wrestles with changes to electronic surveillance law, amendments made necessary by recent court rulings". He pointed this out: "While the court has barred police and other agents of the state from using the techniques (the electronic surveillance and so on) there is apparently little to stop private investigators, journalists or anyone else, even criminals, from using them. These techniques include secretly recording a conversation where one person involved in the conversation gives permission, clandestine use of video cameras and installation of tracking devices to follow and locate vehicles".

He quotes a policeman as saying: "This is a curious world. We are really frustrated because people who are not police, ordinary people, can use these devices now whereas the police cannot". It seems to me there is something wrong with the law and that is why we have to address it. Either they all can use it, or better still as should be properly put into law, the devices can be used by certain people under certain standards to make sure that it is not abused. That is what the law attempts to do.

I want to flag a couple of matters in the provisions. The electronic surveillance amendments boil down to the following: one, they allow police and others in potentially dangerous situations to have their conversations secretly monitored. Who are the others? What are the potentially dangerous situations? What does that mean? How dangerous does it have to be? What is the nature of the potential? It raises a lot of questions which I hope we can address in committee. Two, allow judges to grant authority based on reasonable grounds for police and others to intercept communications with the consent of a participant in a conversation in order to gather evidence or information relevant to criminal activity. I should ask the hon. member for Regina West this. He and I are familiar with electronic devices used at leadership conventions. I thought maybe you would have him speak on this but I will not mention that. Perhaps the Tory leadership candidates should think twice before they are asked to put a microphone in their pocket. I will stay away from that. That gets a little naughty and self-incriminating.

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   MEASURE TO AMEND
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?

An hon. member:

You can be a witness.

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   MEASURE TO AMEND
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NDP

Ian Gardiner Waddell

New Democratic Party

Mr. Waddell:

Yes, you can call me as a witness before the committee.

Again, what are others as defined here? What kind of consent needs to be given and what are the reasonable grounds? Is it like regular wire-tap evidence or is it different?

Three, allow judges and justices of the peace to grant authority for police and others to use video and other surveillance technology such as electronic tracking devices. Again, some similar questions arise.

What is surveillance technology? We might want to hear in the committee about the future of surveillance technology. If we are going to give the police this power, how much power will there be? Does it mean a police car can park outside your house and with new devices hear every conversation inside? We have to balance this.

I am not saying the police do not need some of this and I do not want the House to get me wrong. When I think of the new gang activity in my city of Vancouver and other big cities I think of the drug matters. I want the policeman who is going under cover to be protected, to have a lifeline back to his colleagues, the other policemen. We want to make sure that happens. We want to try and get a balance and we want it defined properly in this bill otherwise some smart lawyer will come to court and get it thrown out again.

The next one is to allow judges the authority to issue warrants and orders to engage in activities or obtain information or co-operation which would otherwise constitute an unreasonable search and seizure. Again, we get to the problem of some of the definitions. What is an unreasonable search and seizure?

February 26, 1993

Finally, to streamline the process applicable to evidence gathered through electronic surveillance. Streamline is a big word. Does streamline mean that you lose some of the procedures that you must have so you can get a judge, a judicial officer or justice of the peace to properly examine why they want a warrant? You do not want to make it impossible for the police to get a warrant. On the other hand, you do not want to set up a system that is easily abused.

It is not easy. We have had a lot of experience with wire-tapping, some good, some bad. I would like to hear from some of the lawyers and the police who have been involved in that.

We do not intend to delay this. I know there are other members who want to say something on this. I will conclude there. As I say, I hope the bill goes to committee, gets fairly speedy passage but is actually looked at it in some detail.

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   MEASURE TO AMEND
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PC

Robert Nesbitt Horner

Progressive Conservative

Mr. Horner:

Mr. Speaker, I rise on a point of order. I have studied this bill and I have done an analysis of the bill. I have listened to two speakers, the justice critic from the Official Opposition and the hon. member for Port Moody-Coquitlam, who is the justice critic for the New Democratic Party. They are two people who serve on the justice committee with me for whom I have a great respect. I know they have great respect within their own parties.

Both of them said that they would like to see this bill with some inadequacies moved on division into committee. Therefore I would ask you, Mr. Speaker, to seek unanimous consent of the House to have this bill moved into committee.

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   MEASURE TO AMEND
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LIB

Peter Andrew Stewart Milliken

Liberal

Mr. Milliken:

Mr. Speaker, I recognize the hon. member's interest in the bill and I think there is a general disposition to pass it. On the other hand I think there are some members of the House who would like to debate the bill. Unfortunately the government leaves very little time for the opposition to have an opportunity to debate government bills. We usually get closure after an hour of two of debate. If there was a little more reasonableness in the amount of time that is allowed for members to do this we probably would have been through it. Unfortunately we have run out of time today. I would suggest we leave it and call the bill again the

Private Members' Business

week after next when we are back and I expect that after an hour or two of debate it will receive second reading and be referred to committee.

I am sure it is not planning to have the committee sit next week.

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   MEASURE TO AMEND
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NDP

Lyle Dean MacWilliam

New Democratic Party

Mr. MacWilliam:

On the same point of order, Mr. Speaker, it is true there is general agreement in allowing the bill to proceed to committee.

I might remind the hon. member on the other side that the bill has essentially a twofold intent, and in that respect responsibilities in the bill are somewhat divided. Some of the areas of responsibility certainly come into the area of the Minister of Communications-

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   MEASURE TO AMEND
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PC

Steve Eugene Paproski (Deputy Chair of Committees of the Whole)

Progressive Conservative

The Acting Speaker (Mr. Paproski):

We are going into the realm of debate now. I see there is no unanimous agreement. Therefore, it being three o'clock the House will now proceed to the consideration of Private Members' Business as listed on today's Order Paper.

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   MEASURE TO AMEND
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PRIVATE MEMBERS' BUSINESS

EUTHANASIA


The House resumed from February 17, consideration of the motion of Mr. Waddell: That, in the opinion of this House, the government should consider the advisability of introducing legislation on the subject of euthanasia and, in particular, of ensuring that those assisting terminally-ill patients who wish to die not be subject to criminal liability.


PC

Douglas Fee

Progressive Conservative

Mr. Doug Fee (Red Deer):

Mr. Speaker, the member for Port Moody-Coquitlam is asking the government in his motion to consider the advisability of introducing euthanasia legislation, exempting from criminal liability those assisting terminally ill patients who wish to die. He is asking the government in the name of compassion to legalize murder. I want to add my name to those who think that our compassion would be better served by expanding palliative care and pain relief rather than endorsing the killing of people.

February 26, 1993

Private Members' Business

It seems to me there are two questions that must be asked in responding to this motion. The first is whether there is a need for legislation on euthanasia, and second what affect such legislation might have.

It will be recalled that a 1983 report by the former Law Reform Commission of Canada recommended against decriminalizing voluntary euthanasia and was in favour of continuing to treat it as a culpable homicide. The commission also recommended that the offence of counselling, aiding, or abetting suicide should not be removed from the Criminal Code or revised.

The commission maintained its view in the 1977 report and continued to approve the prosecution of mercy killing as murder but suggested that it should not constitute first degree murder. The term mercy killing has never been defined.

In the time that has elapsed since these reports, there have been a number of developments in relation to terminally-ill persons, chronically ill persons and persons who are unconscious and in what physicians call a persistent vegetative state.

Public consensus is continuing to develop regarding issues related to cessation of treatment but most assuredly no consensus has developed on issues involving euthanasia and aiding suicide. In fact there are strong indications that apart from the special case of the Netherlands, most western industrialized nations are not prepared to legalize practices which currently constitute crimes.

These practices continue to be condemned by the courts and opposed on moral grounds. The medical profession and other health care workers have said they want nothing to do with them. Why we are asking for something for medical practitioners that they do not want astounds me. Doctors I have discussed this with expressed a concern and a local doctor that I talked to told me that well-meaning legislators could very well complicate professional judgment and treatment.

The case of Nancy B. in Quebec is known to all of us, an incurable but not terminally-ill woman who had failed to respond to treatment and who wished to have the hospital disconnect the respirator which was keeping her alive. The court found that under the civil law of Quebec the patient had the right to refuse treatment and that this did not conflict with the provisions of the Criminal Code.

Other similar cases exist around the world. We should not confuse the issues. No one is required to accept medical heroics to maintain life. That principle has been decided. This motion goes beyond that and asks that we open the door to legalizing murder. This is not about turning off respirators. This is not about artificially resuscitating and reviving people. This is not about forcing life into unwilling bodies. This motion asks for permission to kill patients.

What happens if we allow it? Let us look at the American example, the well publicized Dr. Death. I think his name is Kevorkian. He claims to operate on the basis of compassion.

Just today there are media reports that he is being investigated and possibly being charged with murder. Apparently one of his patients changed his mind at the last minute and the well-meaning doctor proceeded with his procedure anyway and killed him. Is this what we want to open the door to? I think not.

I love life and I respect the right of all people to live. I also understand suffering, not my own, but I have sat at the bedside of people who were sick and suffering. I have had a desire to help and felt the frustration in not being able to do anything. We all have compassion. We know what it feels like. Most of us have had that same personal experience with suffering and death. We felt helpless and wanted to help.

Surveys have been done in the United States and Canada that show conclusively that people are sympathetic to the situation that people find themselves in when they are suffering from incurable or terminal illnesses. But when referendums were held in those same areas, which specifically allowed voters to decide whether they wished to decriminalize euthanasia and aiding suicide, the voters were always unwilling to take that step. They may have remained unpersuaded of the need for such action. They may also have been concerned about the effect that it could have.

Nor has a case been made for decriminalization. Court decisions have made it increasingly clear that generally approved medical practices, such as administering palliative care for pain relief, even when it may also have the effect of hastening the death of terminally ill patients, is not murder.

February 26, 1993

Removing a respirator at the request of a patient is seen by most as an accepted practice. Withdrawing drugs from a patient in a persistent vegetative state at the request of that patient's family has been recognized as an extension of the patient's own right to refuse treatment. In all of these situations, treatment has not been successful and all that remains is to make the patient as comfortable as possible or to grant the request of the patient or his or her family to cease any further attempt to treat.

Is there a need for action? In 1991 when this House was considering a private member's bill to amend the Criminal Code in respect of terminally ill persons, I had the emotionally draining experience to serve on the legislative committee that studied Bill C-204. Among the evidence we studied were medical witnesses who explained the importance of palliative care for the relief of pain. They rejected the argument that Canadians are faced with a choice between a quick good death and a slow painful one.

Palliative care to relieve pain is intended to relieve symptoms, not to sedate patients and hasten death. A physician with great experience in the provision of palliative care in appearing before the legislative committee expressed his concerns in these words and I quote from the testimony: "At the present time, this option of full palliative care is not available throughout Canada. Instead of our present obsession with euthanasia we should invest more resources so that the option of palliative care is freely accessible to all Canadians".

In other words, there is a need, but the need is not to legalize euthanasia or aiding suicide. The need is rather to consider how best to promote a palliative care strategy which includes widespread education, research and bedside services to relieve Canadians' fear of pain and dying.

There is training in medically accepted methods of palliative treatment to relieve pain, but the sad fact is that there are some physicians who are not aware of this training and the methods of fine-tuning symptom control. Until they are made aware, it is premature to consider the advisability of decriminalizing euthanasia. The danger is that where physicians decide to practise euthanasia or aid suicide, the patients may not be aware of the option of appropriate and effective palliative care.

Similarly, there is little incentive for health care systems to promote and support effective palliative care

Private Members' Business

where doctors are known to assist suicide or provide euthanasia service. There is a real danger that euthanasia will be regarded as a cheap substitute for palliative care. Those who would debate that last statement need only look at the recent Dutch experience.

There was another medical witness who appeared before our legislative committee in 1991. They compared the situation in the United Kingdom with the situation in the Netherlands. They used the following terms, and again I quote from the evidence presented to the legislative committee studying Bill C-204: "The United Kingdom has pioneered the development of hospices and palliative medicine and is known world-wide for the compassionate care and symptom relief its citizens are afforded. The Netherlands failed to develop hospice programs and as a result is known for its poor standards of palliative care and pain relief. In desperation it has turned to euthanasia as a cheap solution to suffering".

In conclusion, in Canada there has never been criminal responsibility where a palliative care treatment has had the effect of hastening death as long as that treatment is provided without negligence. There are alternatives society should look at before asking Parliament to legislate on euthanasia. We cannot let compassion overrule our moral values. Let us promote palliative care and pain relief. Let us not glorify murder.

I cannot support this motion and I hope no other members will either.

Topic:   PRIVATE MEMBERS' BUSINESS
Subtopic:   EUTHANASIA
Sub-subtopic:   TERMINALLY ILL PATIENTS
Permalink
NDP

Raymond John Skelly

New Democratic Party

Mr. Raymond Skelly (North Island-Powell River):

Mr. Speaker, I wish to speak in support of the motion of my colleague from Port Moody-Coquitlam. It reads as follows:

That, in the opinion of this House, the government should consider the advisability of introducing legislation on the subject of euthanasia and, in particular, of ensuring that those assisting terminally-ill patients who wish to die not be subject to criminal liability.

With deference to the previous speaker from the government side, I wish to put on the record alternate points of view to the ones he expressed. He said the courts are against this. The courts are really neutral on the question of euthanasia. Their hands are tied by the legislation of this Parliament. They do not make judgments about the moral acceptability or unacceptability, as my colleague sees it, they simply read the law and interpret it the way it is written.

Private Members' Business

We are proposing with this legislation that the government put forward legislation that we can examine and debate and then go to the public and allow it to discuss this in a rational way with a model before it.

The speaker says the medical profession is against this. This is not correct. The medical profession approaches death as an enemy to be fought. The interesting dilemma I think is that the medical profession has continuously encroached in this area. They have in hospitals what they call nocodes, individuals who are designated by family members as having reached the situation in which they will not use heroic intervention and if the individual is not capable of sustaining themselves they are allowed to pass away in dignity.

The question of murder is interesting. I guess we are talking today about the Criminal Code providing a definition of culpable homicide in providing somebody an opportunity to die with dignity. What my colleague is getting at is that he would like to see that area of culpable homicide removed from the Criminal Code so that terminally-ill patients, suffering tremendously and wishing to end their lives, can be assisted in a reasonable and practical way to do so. That is an element of compassion. It is not a matter that the courts are against and that the medical profession is against.

If we decide that it is not murder then it is not murder. In fact it is compassion and dignity that is being requested here.

The most outrageous thing I have ever heard is the suggestion that euthanasia is an alternative to providing quality palliative care. This is an outrageous statement and it is absolutely not true.

I read in detail the presentation of the the head of the Elisabeth-Bruyere institution in town. I could be mistaken because it was presented a couple of months ago, but I read the testimony in detail. The individual has a perspective on euthanasia that is hostile and, at the same time, is tremendously concerned about providing palliative care.

The government on the other side of the House has created an interesting situation in health care where it

has limited the funds available to provinces. One of the things that has suffered is funding for palliative care. The individual when he appeared before that previous committee on euthanasia made a plea for increased sensitivity for palliative care. I make that plea now, my colleague makes that plea and every person in our party makes that plea. Let those funds go so that people do not have to die in pain and agony, so that they can make a choice of going to a palliative care unit where they get decent treatment and can end their last days in relative comfort and dignity.

That is the point the witness was making. The witness was personally opposed to euthanasia but was strongly speaking for palliative care. We strongly speak for that too. We need more resources in that area, but at the same time the door should not be closed on an individual who says: "I can no longer live in unbearable pain, with a lack of dignity and have no control over myself or my bodily functions. I wish to end my life and I wish to have medical assistance to do so".

It is interesting that we in the House can no longer use the murder argument no matter what our perspective is. This is not murder. These are individuals requesting assistance to terminate their lives. They are incapable of doing it safely and effectively. They ask for medical assistance and there is a willingness to provide that on the part of medical practitioners.

We wish to see more palliative care but we also wish to see options for those people who wish to have them. Of course the courts will carry out the law of this land. If this institution decides that it is not culpable homicide, the courts will read it that way too and people will not have to appear before the courts for assisting a terminally ill patient to die.

There certainly are standards. In the Netherlands it is an outrageous argument to make the statement that it passed this particular legislation because it was against providing palliative care. That is just unmitigated nonsense.

February 26, 1993

The Government of the Netherlands heard the message from its people. It passed into law a limited provision with plenty of safeguards so that there is no abuse to basically deal with the wishes of terminally ill patients. We have an obligation to do the same thing in this House.

If we let this motion go forward what will happen? We will not have euthanasia. We will move this debate one step further. I commend the hon. member for Fraser Valley West on the government side who put through the first private member's bill on this matter which produced a very positive debate on both sides. They were some of the best arguments I have heard for and against by witnesses who appeared before that committee.

It was an excellent presentation and argument on both sides. There is an obligation on the part of this House representing the people of Canada and those who are terminally ill, those suffering from AIDS or any of the other chronic afflictive illnesses that incapacitate people. We have a responsibility to bring forward and place before the people of Canada a proposal. Let it be limited but let it address the question.

Topic:   PRIVATE MEMBERS' BUSINESS
Subtopic:   EUTHANASIA
Sub-subtopic:   TERMINALLY ILL PATIENTS
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PC

Fernand Jourdenais

Progressive Conservative

Mr. Fernand Jourdenais (La Prairie):

Mr. Speaker, I am pleased to rise today to speak to the motion of the member for Port Moody-Coquitlam.

This motion raises a number of difficult issues which must be resolved before the question of whether legislation can be considered. One issue is how to determine that the patient is terminally ill. As we know from the media reports, many persons initially diagnosed as terminal have continued to live and contribute to society in a meaningful way for many years.

Objections to the consideration of such legislation bring immediately to mind that the diagnosis of terminal illness could in effect have the consequence of labelling a patient as qualifying for euthanasia.

In the Netherlands the courts have approved guidelines which, if met, provide a defence to criminals charged with euthanasia. There have been reports from that country that elderly people fear pressure from society and families to submit to what has become an increasingly prevalent practice.

Private Members' Business

In this countiy we have gone a long way to combat the labelling of the disabled as being somehow different from the rest of society. Are we to reverse this practice by making an exception in the case of the terminally ill? A related question is why terminally ill patients should be singled out in this regard when some chronically ill persons may in fact be experiencing greater pain.

Recent reports of the passage of legislative guidelines on euthanasia by the lower houses of Parliament of the Netherlands indicate that this is not proposed to limit euthanasia to terminally ill persons. In practice it has not been so limited.

For the information of hon. members, the Netherlands legislation, which must still be approved by the upper house, is available to those experiencing unacceptable suffering. This is defined as follows: the patient must experience his or her suffering as perpetual, unbearable and hopeless. Although these criteria will always contain an element of subjectivity, the physician must reasonably be able to conclude that the suffering being experienced is unbearable.

If through some such definition euthanasia is made available to chronically ill persons, the same labelling process will result and may cause this group of citizens to fear pressure from society and family not to remain a burden on scarce resources.

There is danger of even more subtle pressure from those responsible for allocating scarce health care resources who may consider that the availability of euthanasia for certain classes of patients excuses them from trying to make scarce dollars available to the medical services that care for these patients.

In other words, the allocation of health resources would reflect the value put on individual persons by society's approval of euthanasia. In such an atmosphere our democratic respect for the intrinsic worth of every individual would be breached and we would not find it so difficult in future to weigh money against life.

I believe that the medical profession as well as other health care workers would oppose the legalization of euthanasia. Indeed medical associations in the United States and in England have already recommended

Private Members' Business

against such a step. There are a number of reasons for their opposition.

In the first place it would effect the relationship between physician and patient because of the conflict that would exist between the common expectation that the doctor will advise what is best for the patient and the legal reality that some diagnoses will mark the patient as a possible candidate for euthanasia or assisted suicide.

A conflict of this nature could go a long way toward destroying the relationship of trust which the medical profession is attempting to preserve even in this era of more impersonal health care where fewer people have a family physician who has looked after them for many years.

A similar conflict would exist between patients and other health care workers. Nurses, for example, have in addition to their other responsibilities regarded themselves as advocates for the patients. If euthanasia was legal, they could be faced with situations whereby reporting their observations they would contribute to marking the patient as a possible candidate for euthanasia and to the resulting pressure on the patient to agree to euthanasia in order not to be a burden on the medical facility or on the family. This could lead to an undesirable conflict between the nurse's duty to the patient and his or her responsibility to carry out the instruction of the physician.

I am concerned that the decriminalization of euthanasia would result in undue pressure on patients to resort to this solution and that it would affect the relationship between the patient and health care professionals. I cannot support the motion from the hon. member for Port Moody-Coquitlam.

Topic:   PRIVATE MEMBERS' BUSINESS
Subtopic:   EUTHANASIA
Sub-subtopic:   TERMINALLY ILL PATIENTS
Permalink
LIB

Jesse Philip Flis

Liberal

Mr. Jesse Flis (Parkdale-High Park):

Mr. Speaker, I thank the hon. member for Port Moody-Coquitlam for presenting this motion because it does allow us to at least debate the issue in this House. The intent of the motion is:

That the government should consider the advisability of introducing legislation on the subject of euthanasia and, in particular, of ensuring that those willing to assist terminally ill patients who wish to die not be subject to criminal liability.

I want to share with the House personal experiences with two different cases which could almost give both sides of this issue. One case is about a young man in his thirties who was walking home from a meeting with his friends. He was hit by a car, went flying into the air and crashed to the pavement. His head injuries were so severe that he was in a coma. He was taken to Queen Elizabeth Hospital in my riding. The young man was

married and had two children, ages four and six. His wife and children would visit him every day, sometimes twice a day, in hospital. My wife and I also visited him because we knew him very well. As a matter of fact, he had worked in my first campaign.

Months went by and the man was still in a coma. One year went by and the man was still in a coma. Two years went by, the man was still in a coma. Four years and the man was fed intravenously. He looked quite healthy lying in his bed. It was quite heartbreaking to see the children bring cards they would make for their dad, saying: dad, please wake up, please come back to us.

After four years, this man finally passed away. How tough it was on this mother and the children to go through this for four years, disrupting the whole family. In that case you could argue that maybe it was better with modem medical advice to have disconnected the tubes after one year in a coma, or maybe after two years in a coma, because the doctors were quite sure that he would not come out of this coma. So it may have been a more humane thing to allow this gentleman to pass on in the first year and save a lot of grief and hardship for the family.

But then I have another case, a gentleman who was beaten up in the subway in Toronto about 20 years ago. He had brain injuries back then. But then about 10 years ago he had a heart attack and a stroke. He was rushed to Western Hospital in Toronto on Bathurst Street.

I found out about it through his family. So my wife and I went and paid him a visit and it reminded me of the first incident. Here was this gentleman, in a coma, hooked up with all sorts of tubes and being fed intravenously, and evidently just not hearing who was visiting him, who was talking to him. But we started talking to this gentleman and my wife started saying to him: "Takhur, Bhonjai is here". He called my wife Bhonjai, which in his language meant something like sister-in-law. My wife kept saying: "Takhur, Bhonjai is here, Bhonjai is here". And as he was lying on his side a tear rolled from his eyes.

We were there for about an hour and it was time to leave and the doctor happened to be by the desk as we were walking out and we asked him what his chances were of coming out of this coma. The doctor said: "No, there is no way that he will come out of this". But my wife and I said: "But his eye twitched when we spoke to him; surely he must be hearing what we were saying". The doctor said that no, it was just reflexes and he would not come out of it. We took the doctor's advice. We went home.

February 26, 1993

I will never forget what followed. It was in 1984. As we walked into the campaign headquarters to begin our 1984 campaign I thought I saw a ghost in front of me. Here was Takhur standing at the entrance, unshaven, skin and bones. This was three months after I had seen him in hospital, and I thought he was gone already. There he was standing, and the driving force was that he wanted to help me win the next campaign. He had such a will to live that he wanted to help me to win the next campaign. The medical doctor had said straight to my wife and I: "No, he will not come out of this".

Let us take the case where maybe this gentleman would have signed something that said: "Should this happen to me I want no assistance and I want a doctor to help me end my life without pain". That man would have been gone in 1984. He is still living today and quite active. He is not in the best of health but he is looking after himself. He cooks for himself and looks after all his needs.

Topic:   PRIVATE MEMBERS' BUSINESS
Subtopic:   EUTHANASIA
Sub-subtopic:   TERMINALLY ILL PATIENTS
Permalink
?

An hon. member:

Is he still supporting you?

Topic:   PRIVATE MEMBERS' BUSINESS
Subtopic:   EUTHANASIA
Sub-subtopic:   TERMINALLY ILL PATIENTS
Permalink
LIB

Jesse Philip Flis

Liberal

Mr. Flis:

Yes, he is still supporting me.

If we pass this legislation that could have been someone whose life would have been snuffed out in 1984, and yet he is living today. As a result of those two experiences I have to speak out strongly against any legislation that would assist taking someone's life.

I may be wrong or I may be right. However, after going through that kind of personal experience I am sorry but I must speak very strongly against this motion and any such legislation that would promote the enhancement of taking someone's life.

I have a third example. My own mother-in-law in Joliette, Quebec had a very severe stroke at 79 years of age and she was a vegetable. She could not speak, she could not move her limbs, et cetera. It would have been very easy had she said, as she did in her cultural ways: "Oh, it is time for me to go" before she had her stroke.

Private Members' Business

Well that woman, my mother-in-law, lived to be 89 years old. Again professional advice and her own will could have said: "I want to end it at age 79". She had a will to live. I remember when she was recovering and her hand was not working. She did not take any physiotherapy. She did her own physiotherapy. She kept slapping her hand. She would say: "You crazy hand, how come you are not working?" She got herself going to the point where she was walking. She saw more grandchildren grow up and she went on peacefully, but at 89 years of age not at 79 years of age. I am sure other members in this House have other examples of cases like this.

I thank the hon. member for introducing this motion because it does allow us to debate this calmly and intelligently in this House. I am getting a lot of direction from my constituents and I am sure other members are. I am sure this debate is going to come back to this House again. I hope it will because we do have to debate it seriously.

Topic:   PRIVATE MEMBERS' BUSINESS
Subtopic:   EUTHANASIA
Sub-subtopic:   TERMINALLY ILL PATIENTS
Permalink

February 26, 1993