Friday, October 4, 2019

Advocates call for Disability-Rights Based Appeal of the Québec Superior Court's MAiD Decision in Truchon & Gladu.


October 4, 2019

Hon. David Lametti, MP. Attorney General

Dear Minister Lametti,

Re: Advocates Call for Disability-Rights Based Appeal of the Quebec Superior Court’s Decision in Truchon & Gladu

We, the undersigned members and supporters of the Canadian disability community, are deeply troubled by the Quebec Superior Court’s decision of Truchon c. Procureur général du Canada. As you are aware, the decision has struck down the “reasonable foreseeability of natural death” criterion of Canada’s medical assistance in dying legislation. As Attorney General of Canada, we urge you to file an appeal of the decision immediately.

We find this decision to be concerning for the following three reasons:

1) It fails to respect Parliament’s authority to balance the interests of individuals with the interests of society[1], effectively limiting Parliament’s capacity to pursue social targets such as substantive equality and inclusion.
Justice Christine Baudoin arrives at the conclusion that the end-of-life criterion violates section 7 and section 15 of the Charter by rejecting a key objective of Parliament, erasing any need for a section 1 analysis of reasonable limits. Parliament outlined the following societal objective in the preamble of the legislation:

It is important to affirm the inherent and equal value of every person’s life and to avoid encouraging negative perceptions of the quality of life of persons who are elderly, ill or disabled.

In fully rejecting this objective, the court has limited the authority of Parliament to govern toward an inclusive and equitable Canada. This is a dangerous precedent. Parliament intentionally included the end of life criterion in the legislation as a way of achieving the above objective. Is it reasonable for Parliament to limit the individual interests of Truchon and Gladu (autonomy) in order to promote the interests of society (equality and inclusion)? Without an appeal, we may never know. The Supreme Court must weigh in on this flawed analysis.

2) The decision will entrench stereotypes and exacerbate stigma for Canadians with disabilities, contributing to the adversity and oppression experienced by this vulnerable group.
Without the equalizing effect of the end-of-life criterion, which guarantees that the common thread between all persons who access an assisted death in Canada is that they are all dying, persons with disabilities will be able to gain access ultimately because they have a disability. A worse stereotype couldn’t be institutionalized in law - that disability-related suffering, largely caused by lack of support and inequality, justifies the termination of a person’s life.

Canada must avoid sending a message that having a disability is a fate worse than death. Canadians with disabilities are already bombarded daily with reminders that they are unwelcome and under-valued. We must not compound this harm by entrenching in law the message that others who share their condition will receive our full support if they choose to die prematurely. This message fits too neatly into the stereotype that a life featuring disability is a bad life, full only of suffering and pity. Such a narrative already exists. Canada must appeal the decision to prevent additional stereotyping and stigma, and to substantively protect the section 15 Charter rights of persons with disabilities.

3) Without the end-of-life criterion in place, Canada’s medical assistance in dying legislation will further violate article 10 of the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD).
Article 10 of the CRPD reads as follows:

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.

By offering medical assistance in dying to persons with disabilities on the basis of disability, Canada would be further violating international law. If every Canadian who suffers cannot access a medically assisted death, and yet a Canadian who suffers and has a degenerative disability can, it is precisely their disability status that sets them apart.

Canada is already not taking necessary measures to ensure the effective enjoyment of life by persons with disabilities on an equal basis with others. There is case after case of Canadians whose medical and support needs are not being met, causing them to consider, if not seek out, death. [2]

Canada’s medical assistance in dying regime already concerns the UN’s Special Rapporteur on the rights of persons with disabilities, Catalina Devandas-Aguilar, who shared at the conclusion of her study visit to Canada that she is “extremely concerned about the implementation of the legislation on medical assistance in dying from a disability perspective” and this is before the end of life criterion was struck down.

Minister Lametti, as Attorney General of Canada, we urge you to appeal this decision up through to the Supreme Court. Not to do so, we believe would be a failure on the part of your government to defend persons with disabilities from significant and tangible harm. After extensive consultation by Parliamentary Committees and public debate, your government crafted this legislation intentionally and purposefully. We trust that as Attorney General you will take the steps needed for its vigorous defence. Canadians’ human rights are at stake.

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