Remarks for Dr. Ivan Zinger

Correctional Investigator of Canada

Standing Senate Committee on Legal and Constitutional Affairs

Bill C-7, An Act to amend the Criminal Code (medical assistance in dying)

February 2, 2021 @ 3:00PM

    Good afternoon Chair and Members. Thank you for the invitation to appear before your Committee.

    I appear today in my role as Correctional Investigator of Canada. Given my mandate, I am singularly focused on assessing the impact on federal corrections of bringing MAiD law and practice in compliance with recent em>Charter challenges and court rulings. In my remarks, I will draw lessons and concerns from three known cases of federally sentenced individuals who received medical assistance in dying, including one procedure that took place inside a federal penitentiary. I will also refer to a briefing on these matters that I submitted to the Standing Committee on Justice and Human Rights in November 2020.

    As I see it, there are three substantive problems with current law and policy governing the application of MAiD in federal corrections:

    1. Internal Correctional Service of Canada (CSC) policy gives the agency discretionary authority to facilitate MAiD inside federal prisons under extraordinary circumstances.
    2. Under current law (section 19 of the Corrections and Conditional Release Act), CSC is exempted from reviewing or investigating MAiD deaths, and is not required to provide statutory notice to my Office of a death of this nature.
    3. For incarcerated people suffering from terminal illness or intolerable chronic pain, alternative release options such as geriatric release or medical parole are lacking. Current provisions, such as compassionate release or the Royal Prerogative of Mercy, are difficult to access, highly restrictive and underutilized.

    To my first point, giving the Correctional Service of Canada the authority to facilitate MAiD inside a federal prison, I would point out that the first case of assisted death of this kind was provided to a non-violent drug offender serving the minimal two-year sentence allowed under federal law. The decision to deny him parole even as he was suffering with a terminal illness only to provide MAiD in a penitentiary strikes me as out of step with the gravity, nature and length of this man’s sentence. My review of this case raised serious questions, omissions, delays and the misapplication of law and policy. It highlighted the lack of release alternatives and inflexible sentence administration in managing chronic or terminal illness among Canada’s inmate population.

    To be clear, I have no issue with the principle of extending MAiD to people under federal sentence. My concerns pertain to the nature and context of incarceration itself. The intent of MAiD is to provide Canadians with a legal option to end their life with dignity, at a time and place of their choosing. It is simply not possible or desirable to provide for or meet those intentions in the particular context of incarceration. In the case I just raised, this man ended his life in prison not out of choice, but rather because every other option or alternative was denied or not considered.

    In another case, I reviewed the circumstances of a terminally ill inmate who also had a Dangerous Offender designation. In this case, the man was suicidal and seriously mentally ill. He would actually threaten suicide if not provided MAiD. Given his designation, his prospects for release were minimal. Despite his state of mind, it turned out that he met MAiD criteria, and, with no apparent prospect of release, he was given 24 hours notice to prepare for his death at an outside hospital. This case also serves as a caution as Parliament considers extending MAiD to conditions beyond physical illness, such as intolerable psychological pain.

    My review of these cases suggest that these are not the kind of choices or circumstances faced by citizens in the community when making end of life decisions. Hopelessness, despair, lack of choice, denial of community alternatives are all conditions imposed by the reality of incarceration. A prisoner’s ability to choose how, when and where to end one’s life is mediated through the exercise of state power. There is simply no equivalency between seeking MAiD in the community and providing MAiD behind prison walls.

    Incarcerated persons who become terminally ill in the course of their sentence should have the ability (and some reasonable prospect) of being released from prison on medical or compassionate grounds. As it stands, the criteria for compassionate release in Canada (or ‘parole by exception’) is extremely restrictive and exceedingly difficult to meet. MAiD in a prison setting does not extend choice, nor should it stand as a substitute for an inflexible system of sentence administration.

    To my second point, it is not clear to me what the intent in 2016 was in exempting CSC from reviewing or investigating MAiD deaths. Removing the requirement to provide notice to my Office of a death involving MAiD strikes me as an oversight – and my Office sure wasn’t consulted. As it stands, CSC is not required to inform my Office of a death in custody involving a MAiD procedure. In fact, there is no statutory requirement for CSC to report or review deaths of this nature. I do not believe it was the legislature’s intent to exempt CSC from internal or public scrutiny in such matters. Surely, there must be some provisions in place to assure Canadians that all release options were considered, that the quality of care provided met professional and community standards of care and that all other procedural and legal safeguards were adequately and appropriately met.

    Ideally, I believe that the decision to seek MAiD should occur in the community as a parolee, not as a prisoner behind bars. As I see it, the problem is not whether MAiD should be extended to people under sentence, but rather how and where. It is puzzling but the way that the law is currently written and applied makes it easier for a terminally ill prisoner to qualify for MAiD than to obtain parole by exception.

    Every year up to 40 federal inmates die of natural causes behind bars. Most of these deaths are expected, or to use current legislated criteria, “reasonably foreseen.” Presumably, most of these individuals would have met MAiD criteria, either in its current or contemplated form. In prison settings, MAiD does not necessarily expand the realms of choice in palliative or end of life care. It seems highly improbable that a person of sound mind but physically suffering, presented with a viable alternative, free from coercion and fully informed of their condition and prognosis, would choose an assisted death in prison. It serves no public safety interest for an inmate who becomes terminally ill, who may have already served the majority of his/her sentence up to that point, or perhaps is years beyond their parole eligibility date, to be kept behind bars.

    MAiD for prisoners is not an option that necessarily extends end of life choice, and is not a solution for an inflexible system of sentence administration. Canada is one of the few countries in the world that allows prisoners to end their life by assisted suicide. On perception alone, few reasonable people, up to and including the Minister of Public Safety, agree that extending MAiD to prisoners is a proud or progressive achievement in Canadian corrections. MAiD should never be allowed to take place behind prison walls, and certainly not without any scrutiny of any kind.

    Thank you for your attention, and I would be happy to take your questions.