Submission to the Senate on Bill C-7 – Medical Assistance in Dying

Attention: Mark Palmer, Committee Clerk
Senate Standing Committee on Legal and Constitutional Affairs
The Senate of Canada
Ottawa, Ontario
Canada, K1A 0A4

Sent by email to: lcjc@sen.parl.gc.ca

November 25, 2020

Dear Senators,
ARCH Disability Law Centre (“ARCH”) makes this submission as part of your pre-study of Bill C-7 – An Act to amend the Criminal Code (medical assistance in dying).

ARCH is a legal clinic dedicated to defending and advancing the rights of persons with disabilities in Ontario. ARCH also advocates for the rights of persons with disabilities nationally and internationally. ARCH has expertise in Canadian human rights and equality rights law as it relates to persons with disabilities, national and provincial accessibility laws, access to justice issues, accessible transportation, inclusive education, disability services and supports, and the Convention on the Rights of Persons with Disabilities.

In relation to medical assistance in dying (“MAID”), ARCH has supported disability communities to advocate for effective safeguards to prevent MAID from being provided in a manner that has a discriminatory impact on people with disabilities or that leads to the devaluing of their lives. To this end, ARCH lawyers are advisors to the Vulnerable Persons Standard [1]; have worked on submissions to strengthen MAID Monitoring Regulations [2]; and have provided legal information and advice to persons with disabilities about MAID. ARCH has also published a series of articles about MAID in our newsletter.

Over the last several weeks, disability organizations have put forward very serious concerns about the provisions in Bill C-7 that, if passed, would create an avenue for persons with grievous and irremediable medical conditions whose death is not reasonably foreseeable to be eligible for MAID. These concerns were put to the House of Commons Standing Committee on Justice and Human Rights and to the Senate Standing Committee on Legal and Constitutional Affairs [3]. ARCH shares those concerns that if passed, Bill C-7 would result in more persons with disabilities receiving MAID not because they are near the end of life and want to die with as little pain and as much dignity as possible, but because the social inequality and deprivation they experience is so dehumanizing that they no longer wish to live in those social conditions. Such a result would be a devaluing of the lives of persons with disabilities.

Given the critical life and death issues at stake in Bill C-7, the utmost care must be taken to ensure that both houses of Parliament have sufficient time for proper study and consideration of the Bill. Members of the public must have sufficient time to provide input, in a manner and form that allows for meaningful participation.

Equally, it is critical that every available process be utilized to ensure that Bill C-7 respects the Charter, including the section 15 rights of persons with disabilities to equal protection and equal benefit of the law without discrimination. A legal avenue exists to do just this: referring the Bill to the Supreme Court of Canada to determine its constitutionality, pursuant to section 53(1)(d) of the Supreme Court Act [4].

ARCH urges the Senate to secure a commitment from the Government of Canada to refer Bill C-7 to the Supreme Court to determine whether the sections that allow for persons with grievous and irremediable medical conditions whose death is not reasonably foreseeable to be eligible for MAID respect the Charter rights of people with disabilities. This is a necessary step before the Bill becomes law. A reference to the Supreme Court is imperative, given the fundamentally important issues at stake and the extremely fast legislative process that Bill C-7 has undergone.

There is precedent for referring proposed legislation to the Supreme Court to determine its constitutionality regarding other controversial issues of national social and political importance. One example is the 2004 Reference Re Same-Sex Marriage [5]. Following provincial court decisions that found that restricting marriage to persons of the opposite sex violated the Charter rights of persons of the same sex, the federal government proposed legislation to extend the capacity to marry to persons of the same sex. This proposed federal legislation was referred to the Supreme Court to determine whether it was consistent with the Charter, and if not in what respects and to what extent. At the time, the issue of same-sex marriage was controversial, garnering much social and political debate in Canada. The Supreme Court recognized this, but found that it did not prevent the Court from answering the constitutional question. Rather, the existing social and political debates about same-sex marriage provided important context for the questions before the Court.

ARCH extends its thanks to you, Senators, for your thoughtful and serious consideration of the challenging issues raised by Bill C-7. We urge you to take the time needed to fully study the Bill, and to utilize all the tools at your disposal to ensure that the law you pass respects the lives and equality of all people in Canada, including people with disabilities.

Sincerely,
ARCH Disability Law Centre
Original Letter has digital signature
Robert Lattanzio, Executive Director

[1] The Vulnerable Persons Standard, online: http://www.vps-npv.ca/

[2] “Toward a More Robust Monitoring Regime for Medical Assistance in Dying”, ARCH Disability Law Centre (February 2018), online: https://archdisabilitylaw.ca/resource/vulnerable-persons-standard-vps-submission-on-the-proposed-regulations-for-monitoring-of-medical-assistance-in-dying/

[3] Brief of the Council of Canadians with Disabilities regarding Bill C-7 submitted to the House of Commons Standing Committee on Justice and Human Rights; Brief of Toujours Vivant-Not Dead Yet regarding Bill C-7 submitted to the House of Commons Standing Committee on Justice and Human Rights; House of Commons, Standing Committee on Justice and Human Rights, Evidence, 43-2, No 6 (10 November 2020) at 11:20-11:40, 12:05, 12:25-12:40, 12:55, 12:55-13:00, 13:15-13:20 (Dr. Catherine Frazee, Ryerson University; Krista Carr, Inclusion Canada; Heidi Janz and Taylor Hyatt, Council of Canadians with Disabilities); House of Commons, Standing Committee on Justice and Human Rights, Evidence, 43-2, No 7 (12 November 2020) at 12:25, 12:30 (Bonnie Brayton, DisAbled Women’s Network of Canada; Dr. Harvey Chochinov, University of Manitoba); Brief of Inclusion Canada regarding Bill C-7 submitted to the Senate Standing Committee on Legal and Constitutional Affairs

[4] Supreme Court Act, RSC 1985, c S-26, s 53(1)(d)

[5] Reference re Same-Sex Marriage, 2004 SCC 79 at paras 8-12, 41, [2004] 3 SCR 698