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The Current Transcript for March 2, 2017

Host: Anna Maria Tremonti

STORIES FROM THIS EPISODE

Listen to the full episode

Prologue

[Music: Theme]

SOUNDCLIP

Of course we want to protect somebody from receiving medical aid in dying who really would want this and somebody else makes a decision for them. But it may be also very inappropriate to say I'm sorry, you can't have this.

ANNA MARIA TREMONTI: It's an area where lawmakers did not want to tread when they brought in legislation to enable medically-assisted death. The idea of advanced consent for those with degenerative cognitive illnesses such as Alzheimer's. But after a Quebec man was charged with murder last week for allegedly giving in to the demands of his Alzheimer’s afflicted wife, the issue is back in public focus. And in Quebec a member of the National Assembly whose own mother is in the advanced stages of Alzheimer's says it's a conversation our society must have. Hear him in an hour. Also today, a dodge and a deal..

SOUNDCLIP

Nobody gives away 20 million dollars to a company and says I busted my ass for 20 years to make it, but you know what? I’m feeling generous. You could have it all.

AMT: The wealthy Canadians who agreed to give their money away offshore and then have it return to them tax free as a gift. Dodging Canadian income tax all with the help of the accounting firm KPMG. And when the Canada Revenue Agency found out it cut them a sweetheart deal. No fines, no names. In half an hour, CBC investigative producer Harvey Cashore explains how he found those names with a clever search. But we begin with a story of Indigenous children taken out of Nain, Labrador to a non-Indigenous community hundreds of kilometres away.

SOUNDCLIP

A lot of people thinks it’s like Residential school all over again. It might be helping the children I don't know. But it doesn't help the families back here. It's like tearing families apart.

AMT: I'm Anna Maria Tremonti, this is The Current.

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Inuit children need foster care in their own communities to retain culture, says mother

Guests: Mother, Michelle Kinney, Sherry Gambin-Walsh

SOUNDCLIP

The night they took our children, my 11-year-old was on Facebook and he messaged me and said hi mom. And that was the first time I heard from my kid since they took him. And then I went on his wall and he had I miss you mom and dad, and he made me cry. [voice trembling] I even just feel like crying, because my kids are my world.

ANNA MARIA TREMONTI: Well, that's a mother from the northern Labrador town of Nain. When her children were taken into foster care, they were taken far away from home. Despite the vibrant Inuit community of Nain, children who go into foster care often go to the south, to communities such as Roddickton and Englee on the island of Newfoundland. That is more than four hours of traveling from home, including two flights. There are virtually no Inuit families there, only the foster children who keep coming. This woman fosters children in the town of Roddickton.

SOUNDCLIP

Sometimes you feel that it might be unfortunate. Other times it's quite a nice thing, because I remember first when we began there weren't that many children here. And now for the children to get together and keep their culture that way, that is one aspect that that's really nice with having a few of them here. The families are very loving and opening their homes and we often rely on each other to support each other.

AMT: Well, moving children out of their Inuit communities to new homes far away has a major impact on many lives and brings back memories for some of the darker part of Canadian history. This is a story that Terry Roberts of CBC St. John’s brought to the headlines this week, and we are exploring those issues today beginning with my first guest. A mother in that northern Labrador town of Nain, whose children were taken into foster care in Englee, Newfoundland. We’re withholding her name to protect the identity of her children. Hello.

MOTHER: Hi.

AMT: How long have your children been in foster care?

MOTHER: It's been about a year and a little over a month I believe.

AMT: And how many kids have you got?

MOTHER: Four.

AMT: And how old are they?

MOTHER: Six, five, two, and almost eight months.

AMT: Three boys and the little one’s a girl?

MOTHER: Yup.

AMT: OK. And when was your daughter taken into custody?

MOTHER: I'd say about three or four days after I gave birth to her, she was put into kinship with someone here in town.

AMT: Mm. But your daughter is now in Englee.

MOTHER: Yes.

AMT: And they're all in the same home?

MOTHER: Yup.

AMT: Can you tell me what happened in your situation that your children were taken into foster care?

MOTHER: Myself and my spouse went out to have a drink one night and we did the responsible thing of getting a sober babysitter, and I guess things got out of hand and people were saying that there was domestic violence. But I've been having too much to drink I guess and couldn't remember what had happened.

AMT: Mm. Was there violence in the home?

MOTHER: Only due to alcohol.

AMT: Since that time, have you been getting help for alcohol use, are you still?

MOTHER: Yeah, since the day they were removed I’ve been sober ever since. And my spouse has been having a bit of problem with it, but he’s been sober now for well, I’d say about 9 months.

AMT: OK, so you've been sober for a year you're saying?

MOTHER: Yeah, over a year now.

AMT: Yeah. When did you last see your children?

MOTHER: We went for a visit around the middle of February.

AMT: When you saw your kids then, what was that like for you?

MOTHER: It was really good to see them again. We go out about I’d say every six to eight weeks and the child seniors and social development pays for that, for travel and accommodations.

AMT: And when you visit them, how long of a visit do you get?

MOTHER: Our last visit, we had from 10:00AM to 4:00PM. One of my main concerns is that children, senior and social development, I don’t know if it’s the social worker or their supervisor, they complain about the travel costs and stuff, and they only give us such short visitation rights. And I believe that should be changed.

AMT: They're complaining, what? Because they have to go with you?

MOTHER: No, they’re complaining about, like, the process of getting us out there, and accommodation, and like taxi services and stuff, and they only let the parents get maybe like a couple hours or even a few hours a day to be with their children. I don’t find that right at all.

AMT: Mm. And when you see your kids, like, the last visit, what did you talk about? What did they ask you?

MOTHER: The one that strikes me the most, it's very painful, is my two-year-old, he always says go on playing, go home, go on playing. It’s very painful for us to hear that from our two-year-old.

AMT: And he wants to go home with you?

MOTHER: Yeah. And my boyfriend, he used to call our son irniq, that means son in Inuktitut.

AMT: Mmhmm.

MOTHER: And when my oldest son, when he heard it once, he said what’s that again dad? And we had to remind him, like, he's forgetting his language, and that’s another thing that hurts us.

AMT: And what about your little girl? What's that like for you to see her?

MOTHER: It was, it's very touching. It's very hard to see her but it's also very, I don’t know, comforting, we love her with our might.

AMT: Tell me what you've been trying to do to get your kids back?

MOTHER: [deep sigh] There's a court order for us to do couples counselling, obviously to abstain from alcohol but we’ve been doing that all along. Individual counselling and residential treatment. My spouse has done that to maintain a healthy relationship and all that. And we’ve been doing pretty much everything. Still required to go to residential treatment, even though I've been sober for over a year now. They say it’s to deal with trauma. But being an Inuk woman, like, Inuit women have been through a lot, and I guess in their own way, they find a way to deal with everything.

AMT: Mm. So you feel like you're dealing with the trauma that they want you to?

MOTHER: Yeah.

AMT: Are you feeling trauma over not being near your children?

MOTHER: Yes, so much. We’re going through a great deal of pain being away from our children. We just wonder, like, what they're doing. It's very quiet in here.

AMT: How much better would it be if your children could be in a foster home closer to home?

MOTHER: If they were in Labrador, it would be way better because they would be that much closer to home and they wouldn't be having such a culture shock, I guess. Say if they were around Inuit people, I guess they would teach them the way we’ve been taught all our lives, Inuit ways of life. This should have been recognized long ago and services should have been made available long ago.

AMT: Well thank you for telling us your story.

MOTHER: Yes, thank you too.

AMT: That is a mother of four from Nain, Labrador. Her children are in foster care in Englee, Newfoundland, and we have withheld her name to protect the identities of her children. The Inuit community in Labrador has its own regional self-governing body, the Nunatsiavut Government. That doesn't have the authority over foster care for Inuit children in the area however. That’s still the responsibility of the provincial government. Michelle Kinney is the Deputy Minister of Health and Social Development with the Nunatsiavut Government. And she joins us from Happy Valley-Goose Bay in Labrador. Hello.

MICHELLE KINNEY: Good morning.

AMT: What do you think of how the Newfoundland and Labrador government is handling foster care for Inuit children?

MICHELLE KINNEY: That's a complicated question, I guess. I, first of all, I want to say that I believe the system is composed of many well-meaning, dedicated hardworking individuals. So my comments are certainly not meant to criticize individuals who are doing their best in a difficult situation. However, I think that the institution and roles within which they function are based on non-Indigenous values and practices, so it creates a lot of issues. I think in the media coverage that we've seen in the past week has really missed the point in some ways. I think the problem is that there are too many children coming into care, not necessarily the lack of foster homes. And I think we can't separate the protection of children from supporting families, the two have to go hand in hand. Secondly--

AMT: OK. And so you're thinking the province is taking too many kids into care?

MICHELLE KINNEY: I think that we need to back up and look at what's happening. Yes, I believe that there are too many children coming into care. I believe that the system is reactive instead of using prevention measures. When you look at the amount of funding that it takes to keep a child in care in the Roddickton area, about 33,000 dollars a year. So you multiply that by four in the case of the mother that we just talked to. And I mean, that's a large amount of money that could be going into preventative services, family supports within the community of Nain, and able to provide the supports that this family needs.

AMT: Well, in line with that, I want to play you a clip from the mayor of Englee. His name is Rudy Porter.

SOUNDCLIP

It certainly helps the economy and certainly helps people that some income comes from this to help them survive and live in a difficult time, during difficult times.

AMT: He's talking about an economic benefit for his town with all of these foster children, how does that sit with you?

MICHELLE KINNEY: It doesn't sit well. I think if we, like I said, if we reallocated those resources into the community of Nain, I think we would see a very different picture. If we look, like I say, at the cost of keeping one child in that region at 33,000 dollars a year, the cost of travel to the community of Roddickton to see those children, all of those pieces. It really doesn't make a lot of sense. Even the visitation. You know, the Inuit society is a collective society, so it's not just parents going to visit their children. In my opinion the children should be coming home. The extended family needs to maintain that contact. Children need to maintain contact with peers and be fully immersed in their culture, even if it's only for a visit.

AMT: And is the Nunatsiavut Government trying to get control then of this area of jurisdiction so that you can deal with this in the ways that you suggest?

MICHELLE KINNEY: Certainly down the road that's where we would like to move. In the short term, we've worked really hard at developing partnerships with the provincial government at trying to influence the legislation through the legislative review, to try and educate around the Indigenous worldview, trying to reallocate resources.

AMT: I’m going to stop you there. Educate around the Indigenous worldview. We're hearing a lot in the last several years now about the number of Indigenous kids in care, the problems of this going back decades and decades in Canada. So when you talk to the provincial government about this, do they understand what you're talking about?

MICHELLE KINNEY: I think it's really difficult for them to understand, because we come from such very different places. I think they've really come from a position of risk, of being reactive, of looking at the safety of children, which we are also concerned around the safety of children. But I think the solutions we see as being very different. I think that they would look at the foster care system and see it as being successful, whereas for us, basically we see that children the children who are successes are those who have adapted to and become attached to and assimilated into the foster family, adopting their values and beliefs and all of those kinds of things. It's very similar like someone has already said, to the Residential school program to the Sixties Scoop, to all of those kinds of things. I don't think anyone would point to the Residential school program as being successful, by citing examples of children who got an education. The negative impacts are too great.

AMT: Ms. Kinney, it's very important to hear your voice. Thank you.

MICHELLE KINNEY: OK.

AMT: That is Michelle Kinney, she is the Deputy Minister of Health and Social Development with the Nunatsiavut Government. She joined us from Happy Valley-Goose Bay, Labrador. Well, responsibility for the care of Inuit foster children from Labrador does fall to the provincial government. Sherry Gambin-Walsh is the Minister of Children, Seniors and Social Development for Newfoundland and Labrador. Also the minister responsible for the Provincial Housing Corporation and the Status of Persons with Disabilities. And she joins us from St. John’s. Hello.

SHERRY GAMBIN-WALSH: Good morning.

AMT: Why are there so many Inuit children from Nain and foster care so far away?

SHERRY GAMBIN-WALSH: There are children in foster care because the department's mandates is the protection of children and youth in Newfoundland and Labrador, and applies to all children in our province. The children are unfortunately not placed in Nain or Labrador because this is not always possible. Placements like those in Roddickton are the next best alternative we have. Always and right from day one, we work to try to establish relationships in the communities, we try to place children first and foremost always with family members, be it aunts uncles, any relative at all. Like, first and foremost we will try to identify a home that is a relative prior to removing a child from the community and prior to removing a child from Labrador.

AMT: The mayor of the town of Englee has spoken about the benefits to his community of housing foster children, from being able to keep the community school open, to spending that comes when the biological parents are flown in to visit those children. Are you comfortable with that perspective?

SHERRY GAMBIN-WALSH: No, not really. And I don't, you know, that's the mayor's perspective. However, you know, I will continue to say that we have 580 foster families throughout Newfoundland and Labrador, which approximately 52 families are located in the area, you know in the Roddickton, Englee, St. Anthony area. And I mean, our objective and goal was to try to keep the children as close to Labrador as possible, and we felt it was always best for the children to be placed in the northern part of the province where the culture is, you know, there's outdoor activity and fishing and things like that, as opposed to bringing the children into St. John's, into the city. And also closer for the family members to visit the children. So I mean, our objective and goal is always forever to try to keep the children as close to the family as possible.

AMT: And we just heard our last guest point out that it costs about 33,000 dollars per child. Why wouldn't you use that money in the community to give them the resources and services they need right there?

SHERRY GAMBIN-WALSH: Well we do work with the communities. But again, the department's mandate is the protection of children. Children are the number one priority. We cannot lose sight of that. First and foremost, children have to be protected, once protected, right from the beginning we start to work again. I mean, there are social determinants and social challenges and demographic challenges that prevent us sometimes from placing the children in the community and closest to the families. And we understand and we believe in, you know, we support the Aboriginal leaders in trying to keep the children as close to home as possible.

AMT: Well, and I hear what you're saying. Ms. Gambin-Walsh, at the same time, we know now from Indigenous leaders and from Indigenous youth and from adults that Canada's foster care system in every province has targeted the parents of Indigenous parents in a way they don't target non-Indigenous parents, so when you talk about protecting, do you think you need to take another look at who you're pulling out and that far away, given that the history of what Canada has done to Indigenous peoples?

SHERRY GAMBIN-WALSH: I feel that every single child has to be treated equal, it doesn't matter if you live in St. John's, if you live in St. Anthony, if you live in Placentia, in my district, it doesn't matter. Every single child in the province of Newfoundland and Labrador has to be treated equally when we're trying to protect the children.

AMT: And are you pulling white kids out of isolated communities and shipping them across the province in the same way?

SHERRY GAMBIN-WALSH: We’re not shipping anyone. And first and foremost, the language that was used in this story such as plucking children out is very disrespectful to the Aboriginal communities and very disrespectful to us as a department.

AMT: Well the language they're using is that this is like the Sixties Scoop and Residential schools. That's the choice of Indigenous people using that language.

SHERRY GAMBIN-WALSH: It’s absolutely not. Residential schools were established to assimilate Indigenous children into Euro-Canadian culture. My department’s mandate is the protection of children and youth.

AMT: But do you not see the overlap? Those kids are in a Euro-Canadian community.

SHERRY GAMBIN-WALSH: That's because that's the only choice we have.

AMT: And is that good enough for you?

SHERRY GAMBIN-WALSH: No it's not good enough for me. What's good enough for me is to try to create more foster families, more loving, as opposed, putting children in a family unit is first and foremost where you always want to place the child. These are young children, they need to be nurtured, they need to remain in an environment that is a wholesome environment. And that's our goal and objective while we try to assist and help to get them back with their families. Because always and always the best choice for a child is with their biological family or their relatives, always.

AMT: Are you talking to Indigenous leaders, Inuit leaders about this in a way to try to make it better then?

SHERRY GAMBIN-WALSH: Yes we are. We're working alongside. And I mean, the Child and Youth Care and Protection Act is being reviewed right now, the legislation. So we have consulted a number of times with the Aboriginal leaders in Labrador and here in the province and to try to adjust the legislation so we can then move forward and change some policies. And I believe that they feel the best interest of the child is protection also. And I understand where they're coming from and I wholeheartedly would love to have more foster homes in Labrador.

AMT: Thank you for your time today.

SHERRY GAMBIN-WALSH: You're welcome.

AMT: That is Sherry Gambin-Walsh, Provincial Minister of Children, Seniors and Social Development in the province of Newfoundland and Labrador. She joined us from St. John's. Let us know what you think of this conversation. You can tweet us, we’re @TheCurrentCBC or go to the website cbc.ca/thecurrent.

Back To Top »

How accounting firm KPMG helped wealthy Canadians dodge their taxes

Guests: Harvey Cashore

ANNA MARIA TREMONTI: Hello, I'm Anna Maria Tremonti and you're listening to The Current.

[Music: Theme]

AMT: Still to come, medically-assisted dying may be the law of the land, but what about those with Alzheimer's and other conditions where advanced consent is not allowed? It is a live question in Quebec after a husband stands accused of second degree murder for what some see as a mercy killing of his wife, an Alzheimer's patient. Her request for medically aided death had been refused. We've got that story in half an hour. But first, a taxing investigation.

SOUNDCLIP

As a tax professor, as a tax lawyer, as a citizen, as a Canadian I am upset. There is no reason to help anyone to evade tax. There is no good reason.

AMT: Well, the outraged expert you're hearing there is Marwah Rizqy. She is a Professor of Tax Law at the University of Sherbrooke in Quebec. She's just one of the people who spoke with CBC journalists investigating KPMG. The accounting giant is the subject of a new joint investigation by the fifth estate and the Radio-Canada program Enquête. And after you see the report on the fifth estate tomorrow night, you too may feel outraged. The investigation is into the role KPMG has played in helping some very well-heeled Canadians avoid paying their taxes. And then the federal reaction to that. Harvey Cashore is the senior producer of the CBC Special Investigations Unit he produced tomorrow night's fifth estate investigation. It's called The Untouchables. Harvey Cashore is with me in our Toronto studio. Hello.

HARVEY CASHORE: Hi.

AMT: How big a player is KPMG in tax accountancy?

HARVEY CASHORE: KPMG is one of the big, what’s called the Big Four global accounting firms. They have offices in almost every country in the world, including in major, in several tax havens around the world as well.

AMT: So they set up something called the offshore company structure. How did that work?

HARVEY CASHORE: That's right. And so this goes back to 1999 in the Vancouver office of KPMG. At a time when a lot of accounting firms are looking at ways to help high net worth clients, they call them wealthy Canadians, avoid paying taxes. And there was almost a competition at the time in the accounting world to lure, and they actually called them targets in their documentation, they wanted to lure in their wealthy targets with these tax plans. And so KPMG in Vancouver found a clever way, they believed, to move money offshore and help all these Canadians avoid paying taxes in Canada.

AMT: And so do we know how much money they made from this offshore company structures?

HARVEY CASHORE: To this day we don't know how much it was, but it has to be in the tens of millions, if not more than that. We know that every client that they targeted had to have at least five million if not ten million. And we know from our research now that some of those clients were Canadian multimillionaires and billionaires.

AMT: Do we know how much money Canada lost in revenue because of the scheme?

HARVEY CASHORE: Well, that was one of the things if you recall that the Finance Committee last year wanted to probe and they were cut short to doing that. But to this day, we don't even know the extent of which, you know, the Treasury is deprived of how much money. We do know that in court filings, the CRA itself has alleged that KPMG actually intended to deceive the tax man in this tax, so-called offshore tax product.

AMT: Now, tell me more about how the scheme actually worked?

HARVEY CASHORE: Well it was based on a simple concept. We’ve talked to people in our story who say it was a fictitious concept. But basically you would take your money, you would claim to give it irrevocably away to an Isle of Man structure. Now, the Isle of Man is basically a rocky island in the middle of the Irish Sea between Ireland and the United Kingdom. And you would give that money away. And then one day it would be given back to you. And in Canada, gifts aren't taxed, so you give away a gift, the money grows in interest, isn't taxed, and comes back as a gift and no tax.

AMT: And essentially you could put as much money as you wanted over there?

HARVEY CASHORE: That's right. And, you know, back to your question, we still don't know how much money was parked there or how much money was put there. We do know that in one case there was, you know, tens of millions deposited there but that's just for one client. So when you multiply that by, you know, the 16 families they say now say took part in this scheme. We're talking potentially hundreds of millions of dollars that was parked offshore, untaxed between 1999 and 2012 when they were finally caught.

AMT: OK. How did the Canada Revenue Agency find out about this scheme?

HARVEY CASHORE: Well we don't exactly know but what we know is that the very first family that was caught using this scheme was a family, very wealthy family in Victoria that was basically declaring no income on their tax returns. And so here was a family actually taking in all of these so-called untaxed gifts year after year after year, paying no tax on their tax returns and yet living very well off, and that was I think the first clue. And then what we know is that from there, auditors discovered this is a KPMG scheme. One of the largest accounting firms in the country was actually marketing this scheme, it wasn't one family, it was actually a tax product that internal documents show was aggressively marketed. You know, there are actually what they called product champions, so internally at KPMG whoever sold the most was the labeled the regional product champion and then there's a national product champion and you can just imagine inside KPMG there was a push to sell these. And if you are successful and if you signed up, you know, if you got the most wealthy Canadian clients to engage in this tax dodge, you were called a champion.

AMT: So they would send the money to the tiny Isle of Man.

HARVEY CASHORE: Yeah.

AMT: And essentially it would sit there and like the money would come back, as gifts you said. So they would basically take back as much as they needed and felt like having?

HARVEY CASHORE: Exactly. I mean it was so simple. I mean, if you think of it this way, let's just say you had a bank account in Geneva. OK? And it was owned by you or, you know, someone else you know or owned by you. You would then say, you wrote a document literally called the declaration of gift document, and you would say I irrevocably give away that bank account to the new Isle of Man shell company, no longer my money anymore, therefore I'm not paying any interest on any taxes on the interest and it's someone else's. But you've already got a side agreement that you know that that money is coming back to you and your family. But again as untaxed gifts. So the whole thing avoided as one of our, you know, people in our stories says, the whole circle of tax was avoided.

AMT: So you got the names of some of the Canadians who used this scheme to avoid paying taxes, how’d you do that?

HARVEY CASHORE: Well it was really interesting because there is a public registry in the Isle of Man where these, you know, corporate documents are filed in public. But what you get in the public registry is, you know, are clues. And normally all you get is what's called a nominee director, so in the Isle of Man, there's a whole industry for people who live there, who serve as nominee directors who really are hiding the true identity of the real person behind what they call that structure. So we started looking at this registry and we realized if we plugged in some search terms and searched in a certain way, we discovered more than just the original case we already knew about. And so I remember actually, it was very funny because it was actually in June last year, and I was having a garage sale and nobody came to my garage sale. And I'm sitting there on my front steps I and pull up my computer and I just start going to the search engine, in the Isle of Man I discover a way to search the numbers that hadn't really been discovered before. I remember calling my colleague Frédéric Zalac and saying guess what, I found a name. And then we searched some more, I found another one. And that day I don't think I stopped working until 2:00 in the morning because I found another one and another one. Clues about who was behind this massive offshore tax dodge. And we still don't know all of the secrets. We don't know who all the Canadians were. But on Friday night, we're going to be talking about some pretty significant people involved in that tax dodge.

AMT: How did KPMG respond when they found out you had names?

HARVEY CASHORE: I think KPMG is wondering how on earth we discovered this system. Let's remember, they had all of their wealthy clients sign very secret confidentiality agreements. They could not discuss this plan with their friends, they couldn't discuss it with the public. It was all confidential. In fact, the person we have on our show on Friday is in shadow because he signed this confidentiality agreement. So what's interesting is that it was actually KPMG’s own documentation in the Isle of Man that gave us these clues that got us to where we're going to go on Friday night, which is we're going to reveal the names of Canadians involved.

AMT: So in other words, it was hiding in plain sight. You just knew where to look.

HARVEY CASHORE: Exactly, it was hiding in plain sight. And those clues are pretty interesting, I have to tell you.

AMT: Well we have a clip of a former KPMG client who used this offshore company structure. Let's listen to him.

SOUNDCLIP

Nobody gives away 20 million dollars to an Isle of Man company and says hey, I busted my ass for 20 years to make it, but you know what, I'm feeling generous today. So you can have it all no strings attached. I don't think so. Not for a 100,00 grand cheque that you just wrote to KPMG.

AMT: OK. So again, he's disguised because.

HARVEY CASHORE: Well, I mean, it's really interesting because let's go back to, we got all these names of all these Canadians involved and sometimes they were called the special friends sometimes the actual true owner. And you can't imagine how many times people were hanging up on me when I called them. Nobody would talk to me because, you know, they were involved and this was very confidential. In fact, I would hear from KPMG whenever I called one of these people because they'd get, you know, they were getting, you know, angry calls from their clients. And KPMG would call us and say how do you know about all of these clients? But this one particular person, I remember calling him and he didn't hang up me. and I'm saying thank him for not hanging up on me. And we had a conversation. And so he decided even though he'd signed this confidentiality agreement, he would talk as long as we didn't reveal his identity because he is not allowed to legally, according to the KPMG’s agreement.

AMT: And he says something about writing a 100 grand check to KPMG. What's that about?

HARVEY CASHORE: Well exactly. So KPMG sold this product and the way they made money was they charged a 100,000 dollars as a startup fee to all the clients. You just paid them a hundred grand and they would set up the paperwork for you. And they would actually come in and have you sign the documents in the KPMG office in Vancouver. You wouldn't go the Isle of Man, there was no need for that. And then KPMG would fax those documents to the KPMG office or other offices in the Isle of Man, it would all happen that way. That was the initial payment. Additionally what we discovered is and court documents allege this, that KPMG continued to make an annual fee off of at least one of those clients, based on the taxes that were so-called saved every year. So well into the future, KPMG was earning profits year after year after year.

AMT: So they were, the allegation is that they're getting a certain per cent of the money that is saved?

HARVEY CASHORE: Exactly. Their money was based on the so-called tax savings of the actual clients.

AMT: You were leaked a document about an offer that was made to KPMG clients who would use this offshore company structure by the Canada Revenue Agency. What did it offer?

HARVEY CASHORE: I mean, that's right. I mean, one day I got a phone call out of the blue from someone whose identity I still don't know and said, you know, I have a copy of this secret offer and I'm like well what secret offer? What are you talking about? And so, and I’m waiting for this document to arrive and one day it does. It's a literally a brown envelope in my box at the fifth estate and I open it up and there it is. It's this offer made by, I mean, if you can believe it, made by the Canada Revenue Agency, which we already knew had alleged KPMG had intended to deceive as clients the tax authorities. And at the same time, we now realize they're making an offer to those very clients saying you know what, we'll give you amnesty or no penalties for anything that you've done. Just please pay back the back taxes. Oh and by the way, as a condition of this offer you can't tell anybody about it and not the public and not anyone else. So when we got this letter, when it was leaked to us, you can imagine that there was, you know, significant sort of reaction in Ottawa where people were wondering, you know does, the CRA have a double standard here? Are they treating the average person with, you know, you can see on their website when you go to the CRA website you see handcuffs. They say you're going to jail if you commit tax evasion and then you see this secret deal to KPMG clients, which is, you know, we’ll offer you this no penalties offer but please don't tell the public.

AMT: And we're talking big bucks here that they didn't pay in taxes.

HARVEY CASHORE: We're talking tens of millions if not more than tens of millions. We're not talking about a waitress who didn't declare tips. We're talking about an allegedly deliberate attempt to avoid taxes by intending to deceive the federal authorities by pretending to give away money when you didn’t.

AMT: And the CRA offer was essentially to sweep it under the rug.

HARVEY CASHORE: Absolutely. Yeah.

AMT: So I want to go back to more, let's talk about all of this. You did ask KPMG about the offshore company structure, what did they say?

HARVEY CASHORE: KPMG has never provided an on the record interview on this topic whatsoever. They were compelled to provide a witness at the Finance Committee, it wanted to probe the secret deal. And what KPMG says is look, we had this thing reviewed by our legal counsel in Vancouver, by a lawyer in the Isle of Man and it complied with all laws. KPMG does say to this, today, that they wouldn't do this kind of tax planning anymore. It's not, they don't consider it necessarily ethical anymore but they say nevertheless, at the time, it complied with all laws.

AMT: KPMG got into trouble in the US in the early 2000s. What happened there?

HARVEY CASHORE: Exactly, right. And, you know, at the very same time that there was, you know, we talk about this culture of tax planning back in the late nineties early 2000s. KPMG in the United States had engaged in a very aggressive tax shelter, tax evasion, really program and they got caught. And unlike in the Canadian example, which was a different example, but unlike in Canada, in the US there was an aggressive push to find out what really happened. There was a congressional investigation, they called KPMG witnesses, they compelled them to testify, they compelled them to provide documentation. And we spoke to the former head of the IRS at the time, who actually charged, you know, these executives with tax evasion. And he said it was the congressional committee, the investigative committee that provided some of the key information that led to them getting these charges laid.

AMT: And with the scheme the same at the time?

HARVEY CASHORE: It was a different scheme but based on the same concept of selling a tax product. And you can see in these in the emails in KPMG in the United States, they were actually talking about the consequences of not registering these tax plans with the IRS because they realized oh, we're going to make 360K on this one plan and the fine’s only 36,000, well we won’t tell the IRS.

AMT: And so you said the KPMG staffers involved in the American scheme were tried. What happened then?

HARVEY CASHORE: There were three criminal convictions, sentences and KPMG itself agreed to a criminal deferred prosecution agreement and they paid a half a billion dollar fine for having, you know, marketed this tax evasion scheme.

AMT: A half a billion dollar fine.

HARVEY CASHORE: Half a billion dollar fine. Exactly, exactly.

AMT: OK. So let's go forward again to Ottawa. The parliamentary Finance Committee decides to take a look at KPMG. What was its mandate?

HARVEY CASHORE: Well, they had two questions. They had two questions because we were leaked the secret agreement and you can imagine that was controversial in the House of Commons that, you know, why was the CRA offering what appeared to be, what was called a sweetheart deal for wealthy Canadians. They had two questions, which was one was who at the CRA was involved in making that offer and who at KPMG? And then they also wanted to probe the actual KPMG deal itself.

AMT: So but how is that different from the congressional investigation?

HARVEY CASHORE: Well, it’s night and day. I mean, you began with the same idea, which was let’s investigate the facts behind what happened. And very early on in the Canadian inquiry and this is a parliamentary inquiry. You see the KPMG witness refused to answer the question about who he talked to at the CRA or who the KPMG talked to. And that question was allowed to be unanswered. And then you had the CRA managers who were involved in the secret deal, they were brought to testify and they said oh we can't discuss this because of settlement privilege and that question was allowed to be, that's how it happened. So there was no answer provided. If you contrast that with some of the testimony that KPMG was trying to provide in the United States, the congressional senators were having nothing to do with it. They would say answer the question. And so you really see this difference, it’s either difference in culture or difference in approach where KPMG was compelled to answer questions in the United States and they were let off the hook in the Canadian experience.

AMT: Did the Finance Committee have its hands tied in forcing them to do something? Were they arguing ongoing court case or?

HARVEY CASHORE: That's what they were arguing. Now, what we know is this, so KPMG testified and said this thing was legal, we wouldn't do it anymore, but it's legal. The CRA was allowed to provide some information and then what happened was the committee decided to call some tax experts who had reviewed the KPMG documentation and they were about to give their opinions on whether the scheme was legal or illegal or what it was really going on and on. Literally on the morning of when these tax experts were called to Ottawa, they literally came to Ottawa. They were asked to talk about KPMG. They were kicked out of the committee room. There MPs deliberated on a letter that KPMG had sent to the committee saying look, it's really unfair that you are going to allow the testimony of some people to talk about, you know, KPMG tax scheme when there are court cases ongoing, and so please don't do it. So the committee chair got some legal advice and concluded yeah we shouldn't do it. This might influence the ongoing court cases and literally those witnesses were allowed to continue to testify but not mention the word KPMG. And it led to some pretty interesting exchanges that day because they were there to talk about KPMG.

AMT: Do we know if anyone on the Finance Committee asked the RCMP to investigate what they were learning about the scheme?

HARVEY CASHORE: Well it's interesting, because documents were provided by KPMG to the committee. And in those documents, you see for example at the time this was sold to some of these high net worth clients as a possibility of avoiding the Canadian divorce laws. You could hide your money from your spouse if you got divorced. Asset protection, you actually see concerns within the firm itself that this scheme might violate the law. And, you know, we asked them--

AMT: In their documents.

HARVEY CASHORE: In their own internal documentation. And so these were provided to the committee and to investigative journalists they were gold, because you got inside, you know, what they themselves were saying. And we thought, those of us working on the story thought, this is really important information, surely the committee will begin asking important questions. And believe it or not, they did nothing with all those documents. They didn't ask a single witness about the documents, they didn't probe those documents, they're still sitting gathering dust at the committee. No one has been asked about those documents.

AMT: What would stop the RCMP from going through them?

HARVEY CASHORE: Well, you know, GIllian Findlay is a reporter on the story and she sat down with Wayne Easter, who is the Liberal Chair of the Finance Committee, and she said that she asked him that question well, you know, OK, you shut down the inquiry because of this whole subject to see argument ongoing court cases. Well why didn't you at least hand over those documents to the RCMP? And he said well, it never really came up, never really thought about it.

AMT: Hm. Did the Finance Committee issue a report after its inquiry?

HARVEY CASHORE: Yeah. Yes. The Finance Committee issued a report a couple of months ago. They had 13 recommendations about offshore dealings and how to try and make sure it never happened again. There's not a single reference in that report to KPMG, not a single reference to the secret deal or why it happened. It's completely silent on the reason, one of the significant reasons this inquiry was called in the first place.

AMT: And so how would you describe the relationship between KPMG and federal governments. Past federal governments and now?

HARVEY CASHORE: Well, you know, it's a really good question because what we know is that KPMG actually has several roles. They’re a tax planning firm but they're also an audit firm. And it's kind of interesting to note that they were called in to audit possible, you know, misspending with the F-35 procurement process, they were auditing the Senate expenses. And so you have on the one hand, part of KPMG is brought in by federal governments to actually look at misspending and abuse of taxpayers’ dollars and then on the other hand, at the very same time that that was happening, KPMG was earning money on a tax dodge that the CRA is now calling an intent to deceive.

AMT: And again, the is it 16 names you have?

HARVEY CASHORE: Exactly, yeah.

AMT: The wealthy families that were using this. The Canada Revenue Agency doesn't name them either.

HARVEY CASHORE: That's right. Even if the Canada Revenue Agency got those names, unless they prosecuted them and it went to tax court or to criminal court, we'd never know about it anyway. So these new revelations in the Isle of Man are really problematic for KPMG as you can imagine, because they've been telling their clients since 1999, we're never going to say who you are. We're never going to reveal this information. And even if the CRA does a deal, no one's ever going to know. And now we find out because of a weakness in their own filing system in the Isle of Man, who some of these clients really really are.

AMT: Justin Trudeau's government has promised to cut down on tax cheats. What's the takeaway Canadian should have about the commitment Ottawa has in actually going after companies that facilitate tax avoidance?

HARVEY CASHORE: You know, it's really interesting because if you look at what's called the Big Four accounting firms, you know, PwC, Ernst & Young, Deloitte and KPMG, they do tens of millions of dollars of contracts with the federal government both in Canada, United States and in Europe. I mean, they are actually, you know, extremely involved in trying to ferret out fraud and other kinds of things and so there's that sort of relationship with government and the accounting firms, which it almost has a Jekyll and a Hyde purpose. You've got them helping government save money, and then over here on the other corner of these firms, you've got them hiding tax dodgers from the very same people. And so I think the takeaway is it's a very complicated relationship. We spoke to a tax professor who says look, you know, if a tax firm like KPMG has been proven to have been involved in this kind of scheme, why are they even allowed to get federal government contracts at all? When they've already shown, on the one hand, they're being dishonest. It's a good question, I think.

AMT: Harvey Cashore, this is on the fifth estate. We'll be watching. Thank you.

HARVEY CASHORE: Thank you.

AMT: Harvey Cashore, senior producer of CBC News Special Investigations Unit. His documentary with Gillian Findlay, The Untouchables, airs tomorrow night at 9:00 PM in all time zones on the fifth estate, and you can also find it online and it is also airing with Enquête, our Radio-Canada partners in this. We at The Current also invited KPMG to respond, they sent us a statement and it reads quote, “The Isle of Man tax plan was created in 1999 and hasn't been implemented for close to ten years. As is the case with all of our tax plans, it fully complied with all applicable tax law. We conducted extensive internal and external due diligence, including going so far as to obtain independent legal opinions from leading tax experts, both in Canada and in the Isle of Man. The world in 1999 was a much different time and place than it is today. A lot has changed in the last 18 years. What we can tell you is that using our current standards today, we would not offer such a plan to our clients,” end quote from KPMG. Well, let us know what you’re thinking on this one. What accountability do you want from the Trudeau government and the Canada Revenue Agency on this? You can go to our website cbc.ca/thecurrent and click on the contact link. Let us know what you're thinking, tweet us we are @TheCurrentCBC, go to our Facebook page. Coming up next, advancing the case for advanced consent. I'm Anna Maria Tremonti, this is The Current on CBC Radio One, Sirius XM and online on cbc.ca/thecurrent and on your app.

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Quebec MNA argues for medically-assisted dying advance consent

Guests: François Bonnardel, Dr. James Downar, Jennifer Gibson

ANNA MARIA TREMONTI: Hello, I'm Anna Maria Tremonti and you're listening to The Current.

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RADIO HOST: The man charged in connection with a death at a Montreal long term care facility has appeared in court. 55-year-old Michel Cadotte is charged with second degree murder in the death of Jocelyne Lizotte.

REPORTER: The two had been married for a long time. Jocelyne Lizotte suffered from Alzheimer’s. The family had asked for a medical-assisted death but it was refused. Michel Cadotte’s lawyer Elfride-Andree Duclervil says many of the family members present to support him were from Lizotte’s family, she calls that exceptional.

ELFRIDE-ANDREE DUCLERVIL: Because they are the relatives of the victim in that instance and they were all here to offer their support to my client. So it's greatly appreciated.

AMT: Well even as Canadian society comes to terms with the reality of legal medically-assisted dying, new cases such as what had happened last week in Quebec raise new questions. Michel Cadotte is accused of second degree murder in the death of his wife Jocelyne Lizotte who had Alzheimer’s, and had according to family members, been denied a request for medical aid in dying. None of this has been proven in court. Though on Facebook last week Michel Cadotte appears to have written quote, “I cracked. I gave into her demand for help in dying. I am waiting for the police.” Quebec was the first Canadian jurisdiction to legalize medically-assisted death in 2015. The federal government followed with its own law last year. And now the case of Jocelyne Lizotte may prompt another Quebec first. The provincial government has said it may look at expanding its medically-assisted dying laws to allow advanced consent for people with Alzheimer's, dementia, and other incurable cognitive diseases. One of the people calling for a debate on such an expansion is the Quebec MNA François Bonnardel. He is the House Leader for Coalition Avenir Quebec, the CAQ. And when it comes to changing medically-assisted dying legislation, his reasons are as much personal as political. We have reached François Bonnardel in his riding of Granby, Quebec. Hello.

FRANÇOIS BONNARDEL: Good Morning Anna Maria.

AMT: When you heard the story of Mr. Cadotte and Ms. Lizotte, what did you think?

FRANÇOIS BONNARDEL: Well, when I heard that it was a catastrophe situation for Mr. Cadotte, and I understand how and why he make this decision to end the life of his wife. And three days after, I said to myself maybe it's time to go, and I said to all Quebecers, that it's time, Canadian, it's time maybe to reopen this law, that we vote medical aid to die three years ago at the National Assembly. And my humble story concerning my mom when she started having this Alzheimer’s disease 15 years ago, I have seen her, I've seen her getting worse years after years. Not able to talk anymore and not able to recognize me, not able to laugh with me and not able to walk. And I think my story and even maybe the story of Mr. Cadotte is the story of thousands of Canadian that supports our caregivers with their spouse or their grandparents and hoping that maybe one day we can have a serious discussion concerning this medical aid to die. And like you said, cognitive disease. And I think that I am happy to see that Mr. Barrette, our Health Minister said to me, said to Quebecers in the same day OK, maybe it's time three years later to have a discussion again and maybe taking a year. And I’ve been having a wide discussion in Quebec to see if we can reopen this law.

AMT: Mm. So your mom has had Alzheimer’s for 15 years? Tell me what she is like now.

FRANÇOIS BONNARDEL: Well, she is in her bed almost 20 hours a day. And like I said, like I said, I've seen her, she was there with her boyfriend for 20 years, and I've seen her starting to have this disease and I said one, 8 years ago, and said to Gaeten, she was living in Montreal, and I said to him, listen Gaetan, you can no longer have mom in your house because you're going to die before her as a caregiver. And I said to him when he was trying at home, I said to him listen, I have to take mom, I’ll bring her back to Granby in a senior centre and you will be able to come and see her. But after that I've seen her getting worse and worse, then like I said, not able to walk anymore, not able to speak, to recognize me, to have fun, even smile, even smile. So I really think if I would have this courageous maybe discussion with her 20, 25 years ago and said to my mom, hey mom, if you have dementia or cognitive disease what do you want me to do if you're looking like that in 20 years and 25 years? And I think that that's the way. You know what, I received thousands, not thousands, but lots of mails, and of phone, and people are saying to me François, there's different stage, Alzheimer's disease, you've got different levels. And people think telling me at level one I have 95 per cent of my capacity and I really think if I would be able to sign a release document right now with my family I will do it.

AMT: So Mr. Bonnardel, so you never had a conversation with her after her diagnosis about the idea did you?

FRANÇOIS BONNARDEL: No. And you know what, I was talking to her friend, her boyfriend yesterday night. And he said to me François and I've heard you at the National Assembly, you were almost choking and he said to me, you know what, I was talking to your mom when she was with me and she always told me I do not want to be like that if I have Alzheimer's disease in 20 years and 25 years. But as a children you don't think about that. I remember her when I was talking to her and said maybe mom, I think you're starting losing your mind or your memory. And she was telling me no no I'm OK, I'm OK, I'm looking fine. But it's difficult as a member, as a children, as a child to talk about that with your mom or your dad. And I really think now that we able to have a serious discussion. And remember, I'm quite sure that people who are listening to us this morning, I won’t have a unanimous decision at the National Assembly. When we vote this bill three years ago, almost a third of the MNA vote no concerning medical aid to die. And I really think again it won't be unanimous. But I think with about a 125,000 people who are Alzheimer's disease in Quebec and with second most aging nation in the world, it's maybe time to have this discussion for Quebec but for all Canadians maybe.

AMT: OK. So but let me ask you, how would it work then? You would want the right to have advance consent. So at some point you would have a discussion with someone who's diagnosed and then how would you know when it would be time?

FRANÇOIS BONNARDEL: Well you know what, the Collège des médicins said, the final report of this medical aid to die, they said we forgot to discuss seriously, find a solution concerning cognitive disease, dementia. And they said if somebody could sign in their own conscience, send a document with the treating doctor, with members of family, and said OK, if I'm having this disease or dementia in 20 years and the medicine cannot have a solution concerning this disease, I would like to sign this document. And I've said the same for me. I would say today if it was possible for me to sign a release like that or document that was said to my child to [unintelligible], I will leave you with this difficult decision maybe in 20 years and 25 years to yourself, OK, it’s maybe time to go. And you know what, three four years ago I was not able maybe to sign this document, even if my mom was at the same stage of today and three four years later, I really think that I'm ready. I will be ready for that today.

AMT: OK. What about the idea that this could be open to abuse?

FRANÇOIS BONNARDEL: You're right, you're right. But I really think that with the treating doctor, with members of family, with children, it's tough. I understand maybe we will have some abuse concerning that, but I really think that first of all, we have sent a letter a week ago with François Paradis to a parliamentary committee to say OK, can we have this committee in the next week and after that open a wide discussion in all Quebec like we did with medical aid to die.

AMT: Right. OK. Mr. Bonnardel, we're almost out of time. But the bottom line is you want the discussion to start?

FRANÇOIS BONNARDEL: Yeah. And I'm really happy with Mr. Barrette saying yes and everything with [unintelligible], with Quebec Solidaire, with all the MNAs, we’ll be able to have a nonpartisan discussion and maybe open this law, this bill again in the next year.

AMT: Thank you for your time today sir.

FRANÇOIS BONNARDEL: Pleasure.

AMT: François Bonnardel is a member of the Quebec National Assembly for the riding of Granby, which is where we reached him. While it may be politicians opening the debate, it is the medical community that will have to implement any sort of advance consent when it comes to medical aid in dying. And no surprise, there is no clear consensus in the medical world on this question. Dr. James Downar is a critical care and palliative care physician in Toronto. He's the former co-chair of the physician's advisory committee for Dying With Dignity Canada. Jennifer Gibson is Director of the Joint Centre for Bioethics at the University of Toronto. She is also the former co-chair of the Provincial-Territorial Expert Advisory Group on physician-assisted dying. They are both with me in our Toronto studio. Welcome to both of you.

DR. JAMES DOWNAR: Good morning.

JENNIFER GIBSON: Good morning.

AMT: And this is a conversation we have started in the past, and you have both with what you've been doing on these committees, really thought about a lot of this. So let's start talking about this. First of all, James Downar, a clarification, when we talk about advanced consent, what are we talking about?

DR. JAMES DOWNAR: So this would be a little different than what many people would be familiar with about advanced care planning, where somebody will write down values, their notions of quality of life, perhaps even certain types of treatment that they would feel would be consistent with their notion of dignity, or certain types of quality of life that they would feel are inconsistent with their notion of dignity. And you would write this down in a general document that could be used as a guideline for a moment when perhaps you had to make a specific medical decision but perhaps you weren't capable of interacting with physicians or capable of making decisions at the time. So your substitute decision maker and your health care team would try to work together to recreate the decision that you would have made and do their best efforts to do that. And the document would help inform that process. This is a little bit different. So this would be a situation where already you would have been diagnosed with a condition. And the condition that everybody is talking about would be a dementing illness like Alzheimer’s disease, where you know eventually you will lose capacity to make medical decisions but you haven't lost it yet. And you would say I know that I'm going to lose capacity and when I reach condition X, and you get to define what condition X is, you say at that point I feel that my suffering would be above a point that I don't feel that I would want to continue with my life and I would like a doctor to end my life. So it would be a very specific decision, a request very similar to the one that is made acutely for medical aid in dying, but made for a point in time in the future when your disease reaches that point.

AMT: OK. And so Jennifer Gibson, right now the way consent works on medical aid in dying, how is it different?

JENNIFER GIBSON: Well the significant difference here is that if somebody were to make a request for an assisted death right now, they need to meet a set of eligibility criteria, severe and, that the disease that they have is grievous and irremediable And of course, dementia might fall into that category. But there were some procedural safeguards built into the current legislation that stipulated that the individual who made the request needed to be competent, even at the time of administration of medical assistance in dying. So there's no provision currently in place for an advanced consent, consent must be contemporaneous with the actual administration of the assisted death. So the material change that we're hearing from Mr. Bonnardel and from also members of the public as well, every town hall meeting I go to these days, or every presentation that I meet with members of the public, there's a consistent request for an advanced consent. And I think it's partly recognizing that individuals often have a very clear understanding of what their wishes are. They do often anticipate what their disease states might be like and they're saying look, I know what my decision will be then if I had the voice to be able to do so. So I would like the opportunity to make that known. It's not uncomplicated just to understand this, but it is part of still a commitment for individuals to be in control of their own dying.

AMT: OK. And so it's not uncomplicated to understand why they might want this control but it's very complicated to implement it I guess?

DR. JAMES DOWNAR: So take a step back here and understand how this. What are the drivers for people who want medical aid in dying? It's the idea that there are times when quality of life is more important than quantity of life number one. And that there are situations when people will get to a point where their suffering may be so great and their prospect of recovery is so poor that they're going to say I'm willing to forego the rest of my life in the interest of quality. Whether you agree with that or not, that is the driver for medical aid in dying and why people would want it. And if you're making a contemporaneous request as Jennifer is highlighting here, a physician, a medical person can go to that person, assess does this person really understand where they are? What is the nature of their suffering? What are the other alternatives? And I can be relatively certain that they know that they have passed that tipping point. And then I can feel maybe more comfortable that granting the medical aid in dying is consistent with their wishes. The minute you walk away from that model, the minute you depart from that model of contemporaneous request, being able to assess where they are on that tipping point, you do start to lose a degree of certainty about what you're doing. We know that people are very bad at predicting what their quality of life would be like in a future state of illness. People will routinely say that I would never want to live like that or my quality of life would be terrible. And then they'll get to a point like that and then actually it's not that bad. We know that people are very bad at anticipating the types of decisions that they would make in future and that even family members, you know, the people that know you best are sometimes not very good at predicting what you would want in a given state of illness. And so you understand that when you move away from contemporaneous requests, you start to get into those very murky waters. It's important to acknowledge that we already deal with that in many other analogous situations, so I mentioned advance care planning, advance directive, so in the ICU where I work, we invariably will make life and death decisions for people on their behalf, using the input from family members.

AMT: Do not resuscitate, right?

DR. JAMES DOWNAR: Well, do not resuscitate can be made by the patient. But questions of somebody who's on life support but not capable of interacting with family members, we will often have to make decisions about whether to continue or stop that without any input from the patient at the time. So we're already dealing with those limitations on a daily basis for life and death decisions. Now the question you want to ask yourself is is the risk of unwanted MAD? Is the concern about the possibility that you're actually going to do something for somebody who may not want it? Is that concern big enough to justify a double standard? Are we going to treat MAD differently than we're going to treat--

AMT: Medically assisted dying, MAD.

DR. JAMES DOWNAR: Correct. Sorry, medically assistance in dying, are we going to treat that differently than we treat decisions about discontinuing life sustaining measures or withholding life sustaining measures for an incompetent patient? That, you know, where is your comfort level? Where's our comfort level as a society about, you know, because every decision you make will have a consequence. If you broaden the criteria and allow this, you are potentially going to reduce a lot of suffering. But you do introduce the possibility of unwanted medical aid in dying. And then the alternative would be to say well, let's keep the conditions really narrow and let's restrict this as much as possible. Well that's one decision, and you may limit the possibility or limit the potential for abuse, but you're also going to leave a lot of people suffering. And Mr. Bonnardel’s story is not unusual at all. Jennifer has highlighted this, that these concerns come up all the time. And the consequences of that being that it doesn't necessarily mean that you're going to keep these people alive. Like, many people will choose to take matters into their own hands. We've heard this high profile case in Montreal last week, but there have been many many others. So there's no easy solution here at all and every decision has consequences.

AMT: And Jennifer, you are speaking to people about this. What are they telling you? What are they telling you the conversations they're having with their elderly relatives are?

JENNIFER GIBSON: Well, it's even the conversations they're having about themselves and their own medical conditions as well.

AMT: And everyone's elderly by the way, with Alzheimer’s.

JENNIFER GIBSON: And not everyone is elderly, absolutely. And the other thing to consider too is there are two types of scenarios, there may be a scenario where say somebody does have a grievous and irremediable condition, cancer for example, or ALS and an early diagnosis of dementia. They know that the disease from which they're going to suffer most given the progression of the disease is going to be ALS or it's cancer. And they know that they may be well informed about what that trajectory looks like, they may even be reasonably close to death. So meeting the criteria for an assisted death. But they're worried that they actually may not be able to be capable at the moment at which they would provide the final consent. So there's that type of scenario, where in fact dementia it happens to be a feature that individuals experience but it's not the driving feature for which they might be seeking an assisted death. The other scenario would be somebody who has dementia, and it's for that reason they're seeing the progression of that disease. And they're saying look, you know, this is something I'm particularly worried about. I've always been an active person. I've always been somebody who's been very verbal, very relational I've been, you know, somebody who's really identified very much with their cognitive capacities and saying, you know, as James was saying, the quality of my life would be significantly diminished. I know myself well enough, it would be significantly diminished if I'm not able to have those interactions. It may be that somebody objectively might say well, you look happy but fundamentally they know that this would not be the case. And so I'm hearing both.

AMT: Mm. And of course a lot of this, when we first started talking about this, this was about physical pain. So where does that fit in on, I don't know what kind of pain someone with degenerative cognitive illness is feeling. We do know the pain that their loved ones feel. How do you measure that stuff?

JENNIFER GIBSON: Well it's a good question and in fact, some of the suffering may be pain related. And in fact, there is a recognition within the legislation that it can be physical or psychological suffering. So sometimes what we hear most often is that one of the reasons why people seek an assisted death, it's not because of pain. Often pain is reasonably well managed and so--

AMT: It’s the psychological suffering.

JENNIFER GIBSON: It’s the psychological suffering, the existential suffering, the desire to be able to retain a certain amount of control or fear of losing that control. So a lot of the work of palliative care is to help people deal with pain and that suffering and to alleviate some of that existential dimension of it. But still, there may come a point where a patient may say but you know what still this is a point at which I'm ready to go. The suffering it's intolerable for me. I would like my life to end. And so the fear is that if I'm unable to execute that wish, if you will, then I will be left in a state of suffering that I don't find acceptable to me.

AMT: James Downar, what are the challenges in finding doctors who would agree to advanced consent?

DR. JAMES DOWNAR: So this is an important question. There are obviously people who have moral objections that don't want anything to do with medical aid in dying. But there is even among providers, willing providers, willing assessors, I think anybody who is anybody, let alone people in the medical field, have very clear ideas in their own mind about what they think are acceptable indications or reasonable indications for medical aid in dying. And what are not reasonable indications for medical aid in dying. This is an ethically contentious area and a lot of the terms and the criteria are very subjective. So if I'm going to come into a room and assess somebody to see if they meet criteria, like what is a serious and incurable illness? The law does not define it beyond that, right? What is intolerable suffering? What is a reasonably foreseeable death? That's all it says in the law. So I have to apply that to a given person. It's unrealistic to expect that I'm going to completely separate my own views about what is right and wrong and what is reasonable and not reasonable from my objective professional judgment about whether this person meets criteria. So I think, and you see this in contentious areas in Europe, where people for example, are requesting it for mental illness, which is also very controversial. That many physicians will just frankly disagree about whether patients meet criteria or not. And I think these people are all acting in good faith, but it will definitely affect access. Already people with fairly cut and dried requests will have trouble accessing the service. So when you take it to the boundary areas and the more controversial areas, I think you can anticipate you're going to have more difficulty.

AMT: Is there a concern that someone offering this medical assistance could end up, like it could blow back on them? Like somebody could like, you know, are they legally liable in a way or if you bring this in it would be very clear. Like, what are the concerns there?

JENNIFER GIBSON: Go ahead James, yeah.

DR. JAMES DOWNAR: Well, you know, the law as it is sets a situation in which the Criminal Code does not apply. So if patients meet criteria X Y and Z, the Criminal Code does not apply. So your question is if criteria X Y and Z do not apply, or people don't feel that it did apply, does the Criminal Code come back into effect? This is either a medical act or a criminal act. There's not really a gray zone in between. And I think that's the fear that a lot of practitioners have is--

AMT: It has to be very clear.

DR. JAMES DOWNAR: It has to be very clear.

AMT: I'm really struck though. You know, this conversation began with people going to Europe because they wanted medical assistance in dying. And now we see a case of a man charged and the alleged story around it and we don't know for sure, is that is that this is what his wife was begging him to do and so he did it. It's almost as if again, we're having a conversation that we want the politicians to have that people are already having in their homes.

DR. JAMES DOWNAR: In Europe, about 0.5 per cent of the population, you know, in countries where medical aid in dying is legal, about 0.5 per cent of the population people die as the result of what's called voluntarily stopping eating and drinking VSED. This is almost invariably or very often the case where somebody has requested medical aid in dying and been turned down for it. And they've chosen to stop eating and drinking as a means of ending their life. Just underscoring the point that yes, you can set criteria and you can say alright, you know, in order to keep people safe I don't think that certain people should be allowed to access this. That does not mean you're saving their life and that does not mean you are improving their quality of life. You're not off the hook just saying no. And I think it's, you know, if you want to look at a situation like what we're seeing in Quebec or somebody stopping eating and drinking, you have to recognize that when you say no to people, this is potentially what you're introducing.

AMT: And Jennifer, we're almost out of time. Just the last thought from you.

JENNIFER GIBSON: So I think this is the time to be having the conversation. Indeed it is a conversation that is happening, but also in the legislation we have, we actually there is a provision there that this topic must be studied. And so the Council of Canadian Academies has been tasked with that. So it is going to be something that we're going to need to keep our eyes open to. It is complex but it's not so complex that we can't actually find a way through it. And I think we will.

AMT: Thank you both for coming in and talking about this.

JENNIFER GIBSON: You're welcome.

DR. JAMES DOWNAR: Thank you.

JENNIFER GIBSON: Thank you.

AMT: That is Dr. James Downar, critical care and palliative care physician in Toronto, former co-chair of the Physician's Advisory Committee for Dying With Dignity Canada. Jennifer Gibson is Director of the Joint Centre for Bioethics at the University of Toronto. Also the former co-chair of the Provincial-Territorial Expert Advisory Group on physician assisted dying. They're both in our Toronto studio. We want your thoughts on this as well. We are on Facebook, on Twitter we are @TheCurrentCBC. Send us an email by going to our site cbc.ca/thecurrent and click on the contact link. And right now we just want to acknowledge those who create the show.

[Music: Credits theme]

SAM COLBERT: Hi, I'm Sam Colbert one of the producers here at The Current. This week the show was produced by Idella Sturino, Howard Goldenthal, Ines Calabrese, John Chipman, Lara O’brien, Shannon Higgins, Sujata Berry, Kristen Nelson, Liz Hoath, Karin Marley, Samira Mohyeddin, Pacinthe Mattar, Stephanie Kampf and Willow Smith. Special thanks this week to our network producers Suzanne Dufresne in Winnipeg and Susan McKenzie in Montreal. The Current’s writer is Peter Mitton, our web producer is Lisa Ayuso, transcriptions are provided by Eunice Kim and Rignam Wangkhang. Our technical producers are Gary Francis and Jennifer Rowley, our documentary editor is Josh Bloch. Our senior producers are Richard Goddard in Toronto and Cathy Simon in Vancouver. The executive producer of The Current is Kathleen Goldhar.

AMT: That's our program for today. Remember, you can always take The Current with you to go on the CBC Radio app, free from the App Store or Google Play. Now, after a discussion about Inuit children in Labrador being placed with foster families far away from home, we are ending with some Inuit children's music. This is from a 1980 record made by the CBC's northern Quebec service and it features traditional children's songs in the Inuktitut language in new arrangements. This song is called Kullu Kullu. I'm Anna Maria Tremonti, thank you for listening to The Current.

[Music: Kullu Kullu]

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March 2, 2017 full episode transcript

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