H. Archibald Kaiser Professor, Schulich School of ; Professor, Department of Psychiatry, Faculty of Medicine; Halifax, N.S. B3H 4R2 Ph: (902) 494-1003 Fax: (902) 494-1316 E-mail: [email protected]

1 December 2020

The Standing Senate Committee on Legal & Constitutional Affairs The Senate of

Dear Committee Members:

I believe that Bill C-7 is currently before you. I want to record my strong opposition to its proceeding in its current form.

My Background To introduce myself, I am a Professor at the Schulich School of Law at Dalhousie University, where I have taught for more than forty years. Currently my courses are , and Mental Disability Law: Civil and Criminal (two separate classes). I have also been cross- appointed to the Department of Psychiatry at Dalhousie for more than twenty years, where I teach Legal Issues in Psychiatry in the Residency Training Program. I have been an active supporter of many disability rights organizations for decades, including the Canadian Mental Health Association, the Association for Community Living, People First Nova Scotia and several others. I have also practiced law part- and full-time in the past—both through Dalhousie Legal Aid Service and on behalf of a private charitable foundation, endeavouring to advance the interests of people with disabilities in general and those with mental health problems and/or intellectual disabilities in particular. About 50% of my publications are in this area.

I will make my points succinctly, in the interests of communicating my concerns about Bill C-7 as soon as possible.

Lack of Appellate Review It should be a grave warning sign for all legislators that the first clause in the Preamble of the Bill is that “the Government of Canada has committed to responding to the Superior of Québec decision in Truchon”. The introduction of this Bill shows uncharacteristic haste in lawmaking which is extremely worrying. As the legislative summary from the Library of Parliament says, “Neither the federal government nor the government of Québec appealed the ruling.” (5) Normally, one would expect that the scrutiny of appellate (the Court of Appeal and the ) would have preceded such a major change in an immensely complicated legal and policy area. This leaves lawmakers in an unenviable position, relying on speculation as to whether that decision would have been upheld in the fierce light of appellate review. I also note that the Statement by the Department of (October 21, 2020), itself very brief, states that it is “a non- exhaustive discussion” which provides little comfort. It would be, on that ground alone, amply justified if the government determined to withdraw the Bill, in order to seek a constitutional reference.

The Repeal of s. 241.2(2): Natural Death No Longer Having To be Reasonably Foreseeable This is obviously one of the most radical changes in the Bill and it shifts the terrain entirely from “medical assistance in dying”, the current subtitle in the Criminal Code, to “medical assistance in terminating life where natural death is not reasonably foreseeable even where suffering might reasonably be relieved.”

This is a far cry from Carter, decided only five years ago by the Supreme Court. There, the Court explicitly framed its around the concerns of a person who “has two options”, to “take her own life prematurely” or suffering “until she dies from natural causes”. (Para. 1) The context was a person with “a grievous and irremediable medical condition”, where suffering “is intolerable in the circumstances of his or her condition” and where “irremediable” “does not require the patient to undertake treatments that are not acceptable to the individual”. (para. 127)

I join the many individuals and groups who advocate for the rights of persons with disabilities, as they are the group most clearly vulnerable under the proposed . It is society that, in large measure, determines whether the suffering of individuals with disabilities apparently have an “irremediable medical condition”, often because persons with disabilities are not supported adequately.

As Community Living has put it: the bill “would allow for people with disabilities to die with medical assistance because they have a disability”, where “this suffering is not caused by a disability—rather it is caused by the pervasive and unjustifiable lack of services and supports needed by many people with disabilities to lead a full life.”

Moreover, for people with disabilities and in response to the Supreme Court’s elaboration of “irremediable”, we are not talking about a person being required “to undertake treatments that are not acceptable to the individual.” Instead, people with disabilities are frequently never offered the kinds of treatments and community supports that they may have sought in order to live decent lives in the community without suffering.

The insensitivity and hollowness of these supposed “safeguards” (as described by the Library of Parliament, p. 7) offered in Bill C-7 is amply demonstrated by s. 241.2 (3.1) (g), which requires merely that “the person has been informed of the means available to relieve their suffering”. Obviously, it is the actual deprivation of “the means available to relieve their suffering” that disability-rights organizations are pointing out. The further specification in s. 241.2(3.1)(h) makes it clear that the often parsimonious provision of services is accepted within this legislation, because it refers to practitioners being required to “have discussed with the person the reasonable and available means to relieve the person’s suffering.” Issues surrounding reasonableness and availability of supports are contested and people with disabilities have historically had to live with the discriminatory denial of services. Rather than offering safeguards, the Bill explicitly accepts the status quo of discrimination.

As the Supreme Court of Canada said in Eldridge (1997), at 56: “It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions…this historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw. ….they have been subjected to paternalistic attitudes of pity and charity, and their entrance into the social mainstream has been conditional upon their emulation of able bodied norms…one consequence of these attitudes is the persistent social and economic disadvantage faced by the disabled…less education, are more likely to be outside the labour force, face much higher unemployment rates, and are concentrated at the lower end of the pay scale when employed.” 2

More recently, in Ontario (AG) (2020), the Supreme Court accepted that “In our society, persons with disabilities regrettably face recurring coercion, marginalization, and social exclusion.” (61)

Professor Frazee has put the situation in high relief: “It’s cold comfort, I think, to be offered the choice to die when you are not offered the choice to live a dignified life—when you are not offered the basic supports and the basic dignity that we as we [would] consider, I think, minimal for all members of our community.”

Ignoring and Contravening the Convention on the Rights of Persons with Disabilities (CRPD) Canada has not yet adequately implemented its pervasive obligations under the CRPD. Moreover, this Bill exacerbates its failure to adequately protect the interests and lives of persons with disabilities. Both shortfalls have been commented upon by the United Nations and Canada should not amplify its non-conformity with the CRPD and its shame by its official international scrutineers by passing this Bill.

The Preamble of the Bill at least mentions the CRPD: “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.” Beyond this formulaic recitation, the CRPD seems to be absent from the discussion of the Bill, for example, in the Library of Parliament Legislative Summary or the Charter Statement from the Department of Justice. The Bill itself is a wholesale betrayal of Canada’s obligations under this international .

Running Afoul of Basic CRPD Obligations and Its Specific Right to Life Protections for People with Disabilities The Convention reflects a new world consensus on the nature of disability and how people with disabilities should be treated in society, adopting the disability or social model, as opposed to the now officially discarded charity and medical model approach. (Foreign Affairs and International Trade Canada, 2009, “Backgrounder”). Disability is now seen as “a problem of the society—its response to people with disabilities, in systems, , policies and relationships” (Federal Disability, Reference Guide, 2013, 2), not an internal pathology residing in the individual.

Under Article 4, the CRPD must be implemented and Canada’s obligations include “to take all appropriate measures, including legislation, to modify or abolish existing laws, , customs and practices that constitute discrimination against persons with disabilities” (4(1)(b)) and, “in the development and implementation of legislation, states parties shall closely consult with and actively involve persons with disabilities…through their representative organizations.” (4(3))

Canada is riding roughshod over these accepted duties. It has failed to live up to its broad responsibilities under the Convention to create a country that actually does “promote, protect and ensure the full and equal enjoyment of all and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity” (Article 1).

The Committee on the Rights of Persons with Disabilities, in its concluding observations on the initial report of Canada, May 8, 2017 noted with concern “That the provisions of the convention have yet to be appropriately incorporated into legislation and policies across sectors and levels of government.”(9(a)) The Committee was also concerned about: “The persisting gaps in the exercise and enjoyment of rights by persons with disabilities, such as the rights to education, work and employment and an adequate standard of living, due to, among other things, a lack of affordable housing and access to water and sanitation.” (13(a)) 3

Even more to the point, on the right to life, Article 10 of the CRPD, “The Committee is concerned about the adoption of legislation that provides for medical assistance in dying, including on the grounds of disability.” (23) The Committee specifically recommended that Canada “Ensure persons who seek an assisted death have access to alternative courses of action and to a dignified life made possible with appropriate palliative care, disability support, home care and other social measures that support human flourishing.” (24(a))

In the report by the Special Rapporteur on the rights of persons with disabilities, as a result of her visit to Canada, December 19, 2019, the Rapporteur also observed that “persons with disabilities are at greater risk of living in or almost in poverty” (54) and that “more efforts need to be made to ensure that all persons with disabilities enjoy an adequate standard of living.” (59)

In the same vein as the Committee, “the Special Rapporteur is extremely concerned about the implementation of the legislation on medical assistance in dying from a disability perspective”…“The recent judgment of the Superior Court of Québec might put additional pressure on persons with disabilities who are in a vulnerable situation due to insufficient community support. As many persons with disabilities said during the visit, they are being offered the ‘choice’ between a nursing home and medical assistance in dying.” (69)

The Special Rapporteur also recommended “that the government investigate allegations concerning persons with disabilities in institutions being pressured into seeking medical assistance in dying and establish adequate safeguards to ensure that persons with disabilities do not request assisted dying simply because there are no community-based alternatives or palliative care.” (99)

Failing to Listen to the Voices of People with Disabilities The CRPD was negotiated with an unprecedented level of participation by persons with disabilities. The process that led to the treaty popularized the principle “Nothing about us, without us.”

The CRPD itself, as noted above, in Article 4(3), requires the consultation and involvement for persons with disabilities. Moreover, Article 29 demands that persons with disabilities can “fully participate in political and public life on an equal basis with others.” Canada has agreed to “promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs.” (Art. 29(b)). Finally, article 33(3) requires that “, in particular persons with disabilities and their representative organizations, shall be involved and fully participate in the monitoring process.”

With respect to this Bill, there has been strident opposition from disability rights organizations, as well as individual advocates. This would comprise, among others: DAWN Canada, the Council of Canadians with Disabilities, Inclusion Canada, L’Arche Canada, Citizens with Disabilities, Living with Dignity, Community Living Ontario, and Inclusion , as well as individual experts.

Rather than engaging with persons with disabilities and their representative organizations, this Bill exposes a government that is determined to ignore their voices and suppress their input into legislation. This is not to say that the disability community is monolithic, as there have been both individuals and some groups that have supported aspects of the Bill, but the vast majority of Canadians with disabilities and their representative organizations have condemned it.

How can Canada go forward with this Bill when the persons who are most obviously affected are deliberately, determinedly, and insensitively sidetracked and marginalized? The way in which this 4

Bill has been handled and its content reifies the historic marginalization of the needs, interests and voices of people with disabilities. This silencing will no doubt be condemned again by the United Nations Committee on the Rights of Persons with Disabilities and any future Special Rapporteur.

The Fragile s.241.2 (2.1) Exclusion of Persons with Mental Illness Should Be Endorsed As it stands, the Bill appropriately clarifies that “a mental illness is not considered to be an illness, disease or disability”, but the Preamble talks about further consultation and deliberation being “required to determine whether it is appropriate and, if so, how to provide medical assistance in dying to persons whose sole underlying medical condition is a mental illness.”

Given the disability discrimination apparent in the motivation and content of this bill and its preambular paving of the way for further attacks on the rights of persons with mental illness, this exclusion may have a short shelf life. That would be profoundly regrettable for Canadians with mental health problems and our international reputation.

As the Supreme Court noted in 2020 in Ontario (AG) “the stereotyping, exclusion and marginalization experienced by persons with disabilities is also visited on those with mental illnesses.” (62) They went on to accept that “mental illnesses are not like other illnesses, because they regularly cause people to lose their rights and freedoms in ways that are unimaginable in other health conditions.”(62) The Court accepted that “stigmatizing attitudes persist in Canadian society to this day.” (63) The Court cautions that “while discriminatory attitudes and impacts against those with mental illnesses regrettably persist, they must not be given the force of law.” (63) The Supreme Court seems to appreciate the unique nature of mental illness and the requirement that the law ensure that disability discrimination is not visited upon those who experience mental health problems.

The Bill in this regard should be supported.

People with mental illness already face “increased likelihood of experiencing disability and premature mortality, stigma and discrimination, social exclusion and impoverishment.” (WHO, August 27, 2012, 2)

“In any given year, one in five Canadians experience a mental health or addiction problem.” Moreover, at least 20% of people with a mental disorder have a co-occurring substance use problem.” (CAMH)

To further complicate a necessary understanding of the incidents of mental illness, many persons with intellectual disabilities also have mental health conditions (dual diagnoses). The overall point is that a very high percentage of Canadians experience mental health difficulties. People struggle to live with poverty, discrimination, self- and social stigma, which diminishes their quality of life and makes them more vulnerable to self-harm and suicide. Opening the door to persons with mental illness to use physician assisted death extends potentially exponentially the reach of this invidious further denial of the human rights of persons with mental illness.

The Final Consent Waiver Provisions Are Problematic The Bill provides for an elimination of the current requirement that the person must have the capacity to consent immediately before death is caused. It permits physician-assisted death explicitly in situations where: “the person has lost the capacity to consent to receiving medical assistance in dying.” (s. 3.2(b).

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It is hard to understand how this widening of the availability of physician-assisted death can be consistent with and statutory interpretations of the notion of capacity to consent.

While drawn from the sexual assault context, the Supreme Court of Canada in J. A. (2011) made some basic statements about the necessity of consent at the time of an act, which arguably extend beyond the setting of that case.

It notes that “Parliament defined consent in a way that requires the complainant to be conscious throughout” (33). It also held that, in general, the Criminal Code requires “the complainant to consent to the activity ‘at the time it occurs.’” (34). The Court was particularly concerned that “acts might be perpetrated on persons who do not have the mental capacity to give meaningful consent. This might be because of mental impairment. It might also arise from unconsciousness. It follows that Parliament intended consent to mean the conscious consent of an operating mind.” (36)

The Court found that there must be the ability to “provide actual active consent throughout every phase” and “it is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance.” (66)

While it must be conceded that these statements were drawn as part of an interpretive exercise with respect to the Criminal Code and from a different context, they surely do recite basic principles of law, a fortiori, in instances involving the causation of death. In light of this reluctance to countenance consent in advance when a person might be incapable at the time of an actual act, the question remains whether the safeguards in the legislation are adequate in these special circumstances.

Conclusion: The Bill Should Be Stopped in Its Tracks Thank you for considering my comments on this Bill. I hope you will oppose its passage and revisit the need, which Canada has not yet fulfilled, to fully support the rights of persons with disabilities.

Yours sincerely,

H. Archibald Kaiser Professor, Schulich School of Law and Department of Psychiatry Dalhousie University

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