Focus On

Lawyers, students urge Parliament to protect rights of marginalized | Derek Ross

Monday, October 19, 2020 @ 2:08 PM | By Derek Ross


Derek Ross %>
Derek Ross
On Oct. 5, the federal government re-introduced Bill C-7, An Act to amend the Criminal Code (medical assistance in dying). Among other things, this bill would remove the requirement that a person’s death be “reasonably foreseeable” in order to obtain a physician's assistance to end their life.

The “reasonably foreseeable death” requirement was introduced by Parliament in 2016 — when medical assistance in dying (MAiD) was first decriminalized — in order to “guard against death being seen as a solution to all forms of suffering” (among other purposes). However, this safeguard was deemed unconstitutional by the Quebec Superior Court in Truchon v. Procureur général du Canada [2019] Q.J. No. 7750. The federal government decided not to appeal that decision, despite calls to do so by many (including over 70 disability-rights organizations and advocates).

While Bill C-7 has been largely positioned as a response to Truchon, it introduces a number of additional changes that were not addressed in, nor mandated by, that decision.

On Oct.14, an open letter expressing concerns with the bill, and signed by 140 lawyers and law students, was submitted to Parliament. The letter urges the federal government to uphold its international commitments, protect the rights of marginalized Canadians and reconsider Bill C-7. That letter is reproduced below: 

Lawyers’ open letter
 
The Law is a teacher. The ideas enshrined in our laws represent our societal standards, shape and transmit our cultural attitudes, and inform our individual perceptions. While just laws uphold and reinforce our core democratic commitments, unjust laws erode them. We are deeply concerned that Bill C-7 will have the latter effect.

In its current form, Bill C-7 undermines our constitutional commitment to the equal and inherent value of all lives, as well as our ongoing struggle to meet Canada’s international commitments to persons with disabilities. Perhaps most concerning of all, Bill C-7 eliminates key statutory protections that help protect those considering MAiD from being euthanized against their true wishes.

Bill C-7 reinforces negative stereotypes

By legalizing euthanasia for people who are not dying, Bill C-7 does not just expand MAiD; it fundamentally redefines it. No longer limited to hastening death, Bill C-7 embraces MAiD as a means of terminating an otherwise viable life — but only the life of someone with an illness or disability, for whom death itself is rendered an appropriate therapeutic response to suffering.

Bill C-7 is therefore premised on the notion that suffering associated with a non-life-threatening illness or disability is worse than any other type of suffering, and should, in some cases, be alleviated through a premature death — with social, legal, and governmental support. Bill C-7 thus affirms a very dangerous stereotype: that a life with a disability may not be worth living.

When the law entrenches — even implicitly — the idea that life with a disability is an inferior existence, it exacerbates systemic discrimination and undercuts social support for one’s choice to live with dignity (especially if such support is perceived as costly or burdensome). It also erodes our societal commitment to the full inclusion and equal participation of people with disabilities in all aspects of Canadian life.

This commitment is fundamental to both our constitutional order and established international norms. Singling out non-life-threatening illness and disability as the eligibility criteria for assisted death undermines s. 15 of the Canadian Charter of Rights and Freedoms’ protection against state action that directly or indirectly stigmatizes persons living with illness or disability or that would “write people off because of their impairment” (Granovsky v. Canada (Minister of Employment and Immigration)  [2000] 1 S.C.R. 703).

For other groups protected by s. 15, the obstacles they face are understood to be externally caused: the result of social barriers, insufficient supports and public stereotypes. In those contexts, the law seeks to eliminate external causes of suffering but would never countenance eliminating the person who is suffering as a legal solution. This is as it should be.

We are deeply troubled, however, that this is not so with respect to disability under Bill C-7. If this bill passes, Canadian law will explicitly single out life with an illness or disability as the only kind of existence which justifies state-sponsored termination. The bill therefore contradicts a core premise underlying our entire legal system: that all lives have equal value.

Bill C-7 undermines our international commitments

Canada’s commitments to the equality and inclusion of persons with disabilities are also enshrined internationally and we are especially concerned that MAiD is being prioritized when the government “still lags behind in the implementation of its obligations under the Convention on the Rights of Persons with Disabilities.” Our governments have yet to address this and other major concerns stressed by the UN Special Rapporteur after her visit to Canada over a year ago, including her comment that she is “extremely concerned about the implementation of the legislation on medical assistance in dying from a disability perspective.” This was before Bill C-7 was introduced. We share the Special Rapporteur’s concerns, which will only be compounded by Bill C-7’s drastic reconstruction of MAiD.

Offering MAiD in the absence of guaranteed access to meaningful supports and care options which could alleviate a person’s suffering presents as cruel. This situation, already facing many Canadians, also undermines the rationale of free choice upon which the Supreme Court of Canada in Carter decriminalized the blanket prohibition of MAiD in the first place (Carter v. Canada (Attorney General) [2015] 1 S.C.R. 331). A choice cannot be truly free if there is no realistic alternative: it is a Hobson’s choice, the illusion of choice.

Responding to Truchon

We appreciate that, with Bill C-7, Parliament is responding to the findings of the trial judge of the Quebec Superior Court in Truchon. However, that judgment focused primarily on the Charter rights of the two plaintiffs who were seeking MAiD, and not the Charter rights of those who could be negatively impacted by the far-reaching effects of a widely-expanded euthanasia regime.

A fundamental purpose of the criminal law is the protection of society, especially society’s most vulnerable. Reasonable limits on such exceptional exercises of individual liberty as access to MAiD are justified when they conflict with society’s fundamental commitments and place the lives of vulnerable Canadians at risk. Societal interests were largely ignored in Truchon because of the court’s narrow reading of the law’s purpose, but this does not render them irrelevant. Parliament’s institutional role is distinct from the judiciary’s; Parliament cannot legislate solely in the interests of those seeking ready access to MAiD. Dialogue, rather than dictation, between the judicial and legislative branches is required to ensure that an appropriate balance is struck: one which respects the Charter rights of everyone, including those with disabilities who choose to live with dignity.

Bill C-7 significantly reduces protections in place for vulnerable persons

If enacted, Bill C-7 will jettison important safeguards that were put in place to protect the vulnerable. In this regard, this bill goes much further than responding to the concerns of the court in Truchon.

Nothing in that decision called for the elimination of such important safeguards as the current 10-day “reflection period” to ensure that a MAiD request is fully considered, nor the requirement for two independent witnesses to corroborate the validity of a request. Under Bill C-7, only one witness will be needed, including, for the first time, someone who is paid to provide health or personal care services to the patient. This amendment raises serious concerns about conflicts of interest and/or undue influence, especially in cases where the witness may be a patient’s sole translator and/or care provider.

Similarly, Truchon never even considered the allowance of MAiD by advance requests, which Bill C-7 will permit, in certain cases, with minimal guidelines or safeguards. As noted by the Expert Panel Working Group of the Council of Canadian Academies, permitting advance requests for MAiD introduces the risk that some patients may be euthanized against their wishes and there are no preventative measures capable of eliminating this risk. Since that report, data from Quebec has revealed that over 300 patients who made a written request for MAiD subsequently changed their mind. This risk is elevated insofar as Bill C-7 provides that advance requests may be carried out on incapacitated patients unless they positively demonstrate refusal “by words, sounds or gestures;” and yet, “involuntary” resistance “made in response to contact” will not suffice to halt the procedure. How many patients might be unable to express such a change of mind after making an advance request, due to a loss in communicative or other capacities? Bill C-7 thus opens the Criminal Code to allowing, for the first time, the possibility of non-consensual homicide of an innocent victim. 

We must prioritize our commitment to the equal and inherent dignity of all human life

In its current form, Bill C-7 reinforces the notion that life with a disability may not be worth living or protecting, an attitude that will influence the thinking of millions of Canadians and others around the world who are facing difficult decisions in the allocation of limited resources.

History remembers how a society values the lives of its citizens, especially in difficult circumstances. We currently find ourselves in such a moment. Sadly, the COVID-19 pandemic has revealed several troubling gaps in the long-term care systems that elderly Canadians and those with disabilities depend on. Yet we are encouraged that Canadians have united in response to both COVID-19 and these deficiencies with a renewed commitment to protecting human life, no matter the cost. This commitment underlies both our response to the current global pandemic and our health-care system, and it must remain the foundation for Canada’s approach to MAiD. 

(References and list of signatories have been omitted for spacing purposes, but are available at www.christianlegalfellowship.org/billc-7.)

Derek Ross is a constitutional lawyer and executive director of Christian Legal Fellowship, Canada’s national association of Christian lawyers and law students.

Interested in writing for us? To learn more about how you can add your voice to 
The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.