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Criminal Code

Bill to Amend--Third Reading--Debate

February 11, 2021

Honourable senators, I wish to acknowledge that the Parliament of Canada is situated on the unsurrendered territory of Indigenous peoples.

Honourable colleagues, I rise to move an amendment and ask that you give me your attention as I speak to the discriminatory nature of this hasty, ill-considered bill. With great respect for those who have presented the thoughtful and concerned amendments already debated here, and to my honourable colleague sponsoring this bill, I suggest that we find ourselves giving our best efforts to a bill that really should not be before us today. But it is, because the government refused to conduct the legally mandated review of the current law first and used a lower court’s deadline to propel us here today.

Prior to the decision not to appeal, more than 70 disability rights organizations, including British Columbia Aboriginal Network on Disability Society, Council of Canadians with Disabilities, Canadian Association for Community Living, the DisAbled Women’s Network of Canada, Inclusion Winnipeg, Community Care Manitoba, ARCH Disability Law Centre and People First of Canada, representing the concerns of hundreds of thousands of Canadians living with disabilities, including many who live in racialized poverty, urged the Minister of Justice to appeal and make cogent arguments for an appeal that were ignored.

Indeed, previous to this bill, the Minister of Justice was advised that Canada’s current medical assistance in dying regime that is supposed to be undergoing review troubled the UN’s former special rapporteur on the rights of persons with disabilities who, after her study visit to Canada, reported that she was “. . . extremely concerned about the implementation of the legislation on medical assistance in dying from a disability perspective.”

And this, honourable colleagues, was before the end-of-life criterion was struck down by one lower court and used as a device for bringing this bill rapidly forward. And now — right now — specifically regarding this bill, more independent UN experts are aligning with Canadian disability rights experts.

We were greatly assisted in last evening’s debate by our medical colleagues. Let us also be reminded that expertise comes in many forms, not just from one professional discipline. The UN and Canadian disability rights experts speak to us in one voice, clearly alerting Canada that this bill is highly likely to produce dangerous and discriminatory situations that will happen to people living with disabilities, far from the notice of this chamber and far from our being able to do anything about their situations in real time.

Now, the coalition has grown to over 90 disability rights organization, and I speak here today to convey my own concerns and give voice in this chamber to this coalition, which includes numerous experts from numerous disciplines, to be heard by all.

Just days ago, three independent UN experts — the Special Rapporteur on the rights of persons with disabilities, the Independent Expert on the enjoyment of all human rights by older persons and the Special Rapporteur on extreme poverty and human rights — all moved by serious reservations about this bill, made public their formal letter to the Canadian government, identifying the human rights violations likely to occur if Bill C-7’s expanded access to people with disabilities who are not dying is passed into law.

Governments in Canada have largely failed, as Senator Pate and others have observed already, to invest adequately in implementing laws and programs to achieve a lived reality of substantive equality and inclusion in Canada. With this bill, we’ve entered a zone of making a law that contradicts promises that are constitutional and international guarantees of equality. This is why the three UN special rapporteurs have joined the Canadian disability rights defenders in calling out Canada and inviting us to listen.

Disability rights defenders note that by not appealing the lower court decision on such a crucial life and death matter, the government has modelled this bill on one lower court decision, thereby entrenching stereotypes that will exacerbate stigma for many Canadians with disabilities, contributing to the adversity and oppression experienced by many members of this vulnerable group — to use the Senate terminology — without creating the just, safe environments that are in keeping with promises in our Charter and adherence to international human rights laws.

Without the equalizing effect of the end-of-life criterion — which guarantees that the common thread among all persons who access an assisted death in Canada is that they are all verifiably dying — persons with disabilities will be able to gain access, ultimately, because they have a disability.

A worse stereotype could not be institutionalized in law; that disability-related suffering, often caused by inadequate health and social supports, and entrenched inequality, justifies the termination of a person’s life.

Colleagues, do we really want to be part of sending the message that having a disability is a fate worse than death? Please consider that without this amendment, this bill will further violate Article 10 of the UN Convention on the Rights of Persons with Disabilities, which states:

States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.

Canadians with disabilities are already bombarded daily with reminders that they are unwelcome and undervalued. Do we want to compound the very real and present danger of harm in many of their lives, already exacerbated by social exclusion and poverty, by entrenching in law the message that they will receive our full support if they choose to die prematurely because our society has made many of their lives unbearable?

Doesn’t this message fit too neatly into the stereotype that a life featuring disability is a bad life? Is a lesser life? Some of us in this chamber are persons living with disabilities. Some of us have known poverty and racial discrimination, but none of us is living in entrenched poverty and social exclusion today.

By offering medical assistance in dying to persons with disabilities on the basis of disability, I submit that Canada would be violating international law.

Here is the crux of this amendment. There is currently no right for any Canadian who is not nearing death to access medical assistance in dying, MAID. Access to MAID is created and regulated by law, but not as a constitutional right. If we are determined to remove the requirement for reasonably foreseeable death, why are we not doing it for every Canadian, but instead creating a special right for Canadians with disabilities to die. Is this not just one more example of “separate but equal”; a principle that the courts and human rights tribunals have completely rejected?

Disabled Canadians have not found separate housing in institutions to be a benefit. They have not found separate entries through back doors or freight elevators to public buildings to be dignified. They have not found separate employment in unpaid sheltered workshops, or separate education in segregated schools, or separate transportation to be adequate, where inclusion and equality are goals. What could possibly be the rationale for a separate right to assisted death exclusively for people with a disabling condition? Ableism, maybe? It is no small thing, no mere formality to reframe death as a benefit for the living rather than a harm, but only for some, not for all who might desire it.

The independent UN experts and the Canadian disability rights experts are not drawing from some separate theory of human rights floating out there. They are drawing from the same universal principles of human rights that Canada as a nation and our Constitution are built on. Those human rights principles clearly expressed in the Universal Declaration of Human Rights, upon which our Charter is based, do not entertain and have not ever entertained the possibility that death could be a benefit for persons who are not otherwise dying.

To categorize death as an accommodation for living persons based on their personal characteristics transgresses every norm of human rights known to law. Colleagues, this bill dresses up discrimination and calls it a right, but that does not make it so. This bill is discrimination on the grounds of disability writ large.

Canada is already not taking “all necessary measures to ensure the effective enjoyment of life by persons with disabilities on an equal basis with others,” in the words of the convention. For example, we saw how the government extended financial support much less, and much more slowly, for people with disabilities during this pandemic.

In committee and in this chamber, senators have heard case after case of Canadians, including numerous examples from racialized Canadians, whose medical and support needs are not being met. Poverty and the insufficiency of life supports are causing them to consider, if not seek out, death, sometimes encouraged by health care providers.

You know I came to this chamber as a human rights lawyer and educator. You may not know I’ve been engaged in working with and in UN agencies. Please hear me when I tell you that such a strong, clear, joint communication to a specific government on a specific bill from three independent UN special rapporteurs is indeed a rare occasion of considerable note.

Colleagues, who are we to ignore the words of these experts who said:

In sum, we are deeply concerned that the eligible criteria set out in Bill C-7 . . . may be of a discriminatory nature or have a discriminatory impact, as by singling out the suffering associated with disability as being of a different quality and kind than any other suffering, they potentially subject persons with disabilities to discrimination on account of such disability.

Is it not deeply ironic that this bill states the following in the preamble?

 . . . whereas Canada is a State Party to the United Nations Convention on the Rights of Persons with Disabilities and recognizes its obligations under it, including in respect of the right to life;

Whereas Parliament affirms the inherent and equal value of every person’s life and the importance of taking a human rights-based approach to disability inclusion . . .

Canada ratified the convention in 2010. I was in the great hall of the UN General Assembly for the ceremony on that day, and this treaty has been a major catalyst in the global movement towards recognizing persons with disabilities as full and equal members of society. Canada’s commitment to the convention has helped this country move toward the unconditional recognition, in words, that all persons with disabilities are rights holders, whose inherent human dignity is fully worthy of respect and investment in their capacity to live their rights.

Under the present law, medical assistance in dying is permitted as an exemption to the Criminal Code because a planned death is understood to be a benefit rather than a harm to a person who is dying and desires to control the manner and time of their death — a principle that I strongly support.

By extending this formulation to persons who are not dying, Bill C-7 advances the discriminatory proposition, and therefore that death is preferable to life and therefore a benefit rather than a harm, not only when persons are dying but also when non-dying persons have an illness, disease or disability. And so I place before you an amendment to remove the clause that repeals the reasonable foreseeability of natural death provision, in keeping with our international law and our Constitution, including the following motion which I submit respectfully.

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