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Focus on dignified lives, not facilitated deaths | Isabel Grant and Elizabeth Sheehy

Wednesday, March 24, 2021 @ 1:45 PM | By Isabel Grant and Elizabeth Sheehy

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Isabel Grant
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Elizabeth Sheehy
Just as Bill C-7 became law last week, Minister of Justice David Lametti tweeted that this new law supports “the building of the Canada we are fighting for,” one with dignity and autonomy for all. One could be forgiven for not recognizing that what Lametti was tweeting about was offering medically assisted suicide to people with disabilities who experience intolerable suffering.

Politicians refuse to use the language of assisted suicide, describing it as insensitive. Instead, they sanitize the reality and call it medical assistance in dying (MAiD), hiding the law’s target of people with disabilities who are not dying. But the new law amends s. 241 of the Criminal Code, the provision that makes it a crime punishable by up to 14 years in jail to aid or counsel someone’s suicide; doctors who administer MAiD are explicitly exempted from prosecution for aiding suicide. If MAiD were distinguishable from assisted suicide, this exemption would be unnecessary.

The dubious benefits of assisted suicide for people with disabilities will not be distributed equally. Women and Indigenous peoples experience disability at disproportionate rates, particularly as they age. They are less likely to have access to the resources necessary to ameliorate suffering and more likely to need to resist “Do Not Resuscitate” orders and to justify the value of their lives.

The state could respond to the intolerable suffering of disabled Canadians by strengthening financial support systems and lifting people with disabilities out of poverty. It could rebuild a deeply flawed system of institutionalized care. It could reform a medical system that is tainted by racism, classism and ableism. Yet the government chose a fourth option — it expanded the power of doctors to help those individuals end their lives.

Canada now has the broadest MAiD law in the world. Other countries that allow MAiD for those not at the end of life require that all other treatments be exhausted first. Canada requires simply that the individual be told what resources are available in their community — however inadequate and inaccessible those resources might be.

The government has been warned about this impending human rights disaster — a disaster that will cost countless disabled people their lives — by UN special rapporteurs, doctors, law professors, human rights experts, 147 disability and other social justice organizations and even national media.

What Lametti fails to recognize is that choosing to die is only an exercise of autonomy where there is an actual choice. Where someone is dying already, easing suffering is a compassionate response — no one can cheat death. Where someone is facing profound challenges like substandard housing, poverty that forces them to choose between food and medication, institutionalization, discrimination in access to health resources, loneliness and social isolation, death may well look like the best option.

Profound social inequality is inconsistent with an autonomous choice of death for someone whose intolerable suffering is tied to that inequality. The irrevocable “choice” of death, driven by the suffering of poverty, homelessness, perceiving oneself to be a burden, or a racist, sexist and ableist health-care system, should never be sanctioned by the state for those who are not at the end of life.

The Senate has heightened the danger and discriminatory nature of MAiD. In two years, MAiD will be available to people solely on the basis of mental illness. We know from European jurisdictions that psychiatric MAiD is disproportionately accessed by women. So much mental illness and suffering is caused by trauma, dispossession and colonialism.

Rather than respond to the underlying inequalities, we have institutionalized people with mental illness, forced psychotropic drugs on them, sterilized them, taken their children away, driven them from the work force and refused to provide the community resources that were promised during the deinstitutionalization movement.

Organizations representing Indigenous peoples and those with mental illness are not asking for better access to suicide; offering up death is not an acceptable response to this systemic violence and dehumanization.

Governments will undoubtedly save millions in health-care costs as a result of Bill C-7. Medical and psychiatric professionals will enjoy increased power and authority. And many able-bodied Canadians will sleep better at night knowing they can choose death if they confront disability in their future, regardless of the bill’s impact on those already living with disabilities.

Perhaps that’s why we cover the drugs necessary to end someone’s life by MAiD in provincial health-care plans while having no national pharmacare program to pay for the drugs people need to live, no national housing strategy and no guaranteed annual income.

This law will be challenged in our courts for denying people with disabilities equal protection of the law under the equality guarantees in s. 15 of our Charter. This law can be upheld only if we accept that there is something unique about the suffering of people with disabilities that makes access to death a benefit consistent with their equality.

The exceptionalizing of the suffering of people with disabilities is deeply ableist and perpetuates the very stereotypes that equality rights were designed to confront. This ableism portrays death as preferable to a disabled life.

The Canada we are fighting for would require that resources be made available to enable people with disabilities to live dignified lives, to alleviate their suffering and to build a Canada that includes and values their contributions. Sadly, that is clearly not Lametti’s Canada.

Isabel Grant is a professor at the Peter A. Allard School of Law at the University of British Columbia, specializing in criminal law. Elizabeth Sheehy is a professor emerita of law, University of Ottawa.

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