Are the Charter rights of disabled people best protected by eliminating their access to assisted suicide or by allowing them to seek MAID if their suffering is intolerable?
A new lawsuit argues that the expansion of access to assisted suicide for disabled people in Canada actually violates the Charter rights of Canadians with disabilities.
The legal battle will likely answer a key question: Are the Charter rights of disabled people best protected by eliminating their access to assisted suicide or by allowing disabled people to seek MAID if their suffering is intolerable?
The lawsuit, filed by a coalition of disability activists — and two people with disabilities themselves — argues that allowing people with disabilities to die violates the Charter protections available to all other Canadians and may induce them to end their lives prematurely, based solely upon their disability.
A 2019 Quebec court case, which led to the legislation the lawsuit is tackling, acknowledged the fears of disability activists but concluded that restrictions limiting assisted suicide only to those who are dying imminently was a “flagrant contradiction of the fundamental principles concerning respect for the autonomy of competent people.”
“MAID is portrayed as a no-fail, painless way to alleviate suffering which may incentivize death over other options,” the new lawsuit argues. “Death should not be a solution for disabled people who experience intolerable suffering but are otherwise not at the end of their lives.”
Since the 2015 Supreme Court Carter decision that legalized medical assistance in dying, guardrails and the eligibility for different Canadians have been hotly debated in Parliament. In response to that decision, the federal government introduced legislation in 2016 to allow for assisted suicide, but specifically for those who are near the end of their lives, suffering from a “grievous and irremediable medical condition.”
This would include, for example, late-stage cancer or some other illness guaranteed to cause a foreseeable death. The lawsuit argues that people with “a grievous and irremediable medical condition” are “by definition” people with disabilities. The first round of MAID laws were based upon the distinction between people who are dying and those who are not, the lawsuit argues.
The criteria expanded further in 2019, when the Quebec Superior Court ruled that the reasonably foreseeable death requirement violated the Charter rights of two applicants, Jean Truchon and Nicole Gladu, both Montrealers with significant physical disabilities. The court found that Truchon and Gladu’s rights to equality were violated because they were restricted in making autonomous choices about their life and death.
“While the law as drafted does not force the applicants to live, it nonetheless forces them to choose between suffering, suffering even more or committing suicide,” the Quebec Superior Court ruled.
If you get met with, ‘Have you considered MAID?’ that sends the message, ‘I have no hope for you improving. I’m giving up’
In 2021, the federal government introduced Bill C-7, which created guidelines around assisted suicide for those who were not imminently facing death — called MAID Track 2.
“I think that’s the very question on the appeal, whether people do, in fact, have a Charter right to MAID at any point during their lives,” Grant said in an interview. “Carter said you can’t have an absolute prohibition on all medically facilitated deaths. It didn’t say anything about what you have an absolute constitutional right to.”
The lawsuit argues, essentially, that if all people covered by the MAID prerequisite of suffering from a “grievous and irremediable medical condition” are, by definition, people with disabilities, the latest expansion of MAID, in removing reasonable foreseeability of death, is a de facto restriction of MAID exclusively to those with disabilities.
“MAID Track 2 is exclusively offered to persons with disabilities,” the lawsuit states.
The distinction, the lawsuit argues, is now not between dying and not dying but rather those who are disabled or not disabled.
Emmett Macfarlane, a constitutional scholar at the University of Waterloo, who has written about medical assistance in dying, described the argument as a “rhetorical trick.”
“The fact that track two might only include eligibility of people who have disabilities, is because they’re defining disability as an irremediable condition that’s not terminal, right? So they’ve looped in the definition and then turned around and said, ‘The government is targeting these people,’” Macfarlane said in an interview.
The expansion of MAID rights, the statement of claim argues, increases the risk that people with disabilities will be offered death as a solution to their suffering.
One of the plaintiffs, Kathrin Mentler, says in the court filing that she had an acute mental-health crisis, and, when in hospital, was advised of the existence of MAID by medical staff who “discussed MAID in positive terms,” even though Mentler did not wish to die.
“They want to live, but they’re alleging that harm has been done to them by the existence of MAID,” said Grant.
Even if people with disabilities aren’t choosing MAID, the two plaintiffs are arguing that its existence as an option for them harms them.
“If you get met with, ‘Have you considered MAID?’ that sends the message, ‘I have no hope for you improving. I’m giving up. You’re a burden on resources.’ Different people will hear that message differently, but those are the kinds of harms it’s causing to people who are struggling to stay alive,” Grant said.
The lawsuit further argues that people with disabilities are often marginalized, dealing with socioeconomic disadvantages and inadequate housing, which can in turn lead to suffering. Patients, the lawsuit claims, fear telling doctors about their suffering “for fear that their provider will recommend death as a solution.” There’s also the risk that a doctor informing a patient that assisted suicide is an option for them, should they choose it, could “shape that person’s perceptions of their value.”
The coalition’s lawyers argue that, as a result, Sections 7 and 15 of the Charter of Rights and Freedoms are violated by Bill C-7. The lawsuit argues that offering death in circumstances where people cannot get “state-funded supports to make their suffering tolerable” is a “grossly disproportionate policy response. Grant said the law “denies the same protection of the Criminal Code that everybody else gets, which is the protection against aiding suicide, the protection against murder.”
“Bill C-7 is unconstitutional in its purpose by offering the solution of death to persons who are not otherwise dying, on the basis that they are disabled,” the lawsuit states.
“This is not litigation that is going to succeed in improving social assistance, the welfare state, the health-care system. This is a challenge that is going to try to eliminate MAID as an option for the entire category of people who are not near death but suffering under an irremediable medical condition,” Macfarlane said.
Grant argued, “We see providing the supports they need to alleviate that intolerable suffering as part of the social safety net, but that doctors actively ending the lives of people who are not themselves anywhere close to death is not a legitimate part of any social safety net.”
Macfarlane argued that the lawsuit is seeking to eliminate rights, not protect them.
“It is literally seeking to peel away the rights identified by the Supreme Court,” said Macfarlane. “This lawsuit seeks to actually take away the autonomy of the people who decide to go for this option. And so I really think it’s, in some ways, actually contrary to the rights of disabled persons.”
— With additional reporting by The Canadian Press
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