Medical Assistance in Dying Committee on Nov. 25th, 2022

[La coprésidente, l'hon. Yonah Martin (sénatrice, Colombie-Britannique, C.)]

We will call this meeting to order.

Good morning, colleagues. Thank you for your patience. We had a few technical elements to sort out.

I want to welcome everyone to the meeting of the Special Joint Committee on Medical Assistance in Dying. I welcome especially our witnesses this morning. I know we have one witness from the west coast, so it's very early there. Welcome to everyone who is watching on the web.

My name is Yonah Martin, the Senate's joint chair on this committee. I'm joined by video conference by the Honourable Marc Garneau, the joint chair from the House of Commons.

Today we're continuing to examine the statutory review of the provisions of the Criminal Code relating to medical assistance in dying and their application.

In fact, this is our last meeting with witnesses, as colleagues know. Next Tuesday, we will be discussing instructions for the drafting of the report. Thank you to all of my colleagues who have worked very hard throughout the past few months.

I would like to remind members and witnesses to keep their microphones muted unless recognized by name by one of the joint chairs. I'll remind you that all comments should be addressed through the joint chair.

When speaking, please speak slowly and clearly. Interpretation in this video conference will work like an in-person committee meeting. You have the choice, at the bottom of your screen, of either floor, English or French.

We are going to begin our testimonies shortly for panel one. The witnesses are here to discuss protections for persons with disabilities.

We have, as individuals, Dr. Catherine Frazee, professor emerita, School of Disability Studies at the Toronto Metropolitan University, by video conference. We also have Isabel Grant, professor, Allard School of Law at the University of British Columbia. Lastly, we have Ms. Megan Linton, a Ph.D. candidate, who is here with us in the committee room.

Each of our witnesses will have five minutes to give their remarks.

We're going to begin with Dr. Frazee, who has a pre-recorded testimony. Due to the nature of the testimony, it will be slightly longer, so I wanted to let my colleagues know.

We will begin with Dr. Frazee, followed by Professor Grant and then Ms. Linton.

Dr. Frazee, we will hear from you at this time.

[Dr. Catherine Frazee, Professor Emerita, School of Disability Studies, Toronto Metropolitan University, As an Individual]

Thank you for the opportunity to testify.

I speak from Mi'kma'ki, the unceded lands of the Mi'kmaq people whose dignity in the face of betrayal offers a lesson, I hope, close to my heart.

My focus in these precious minutes for which I have your attention is track two MAID.

I understand that the suspension of track two MAID is not something that you will consider, but underlying my comments today are four strongly held views.

First, Truchon was wrongly decided and should have been appealed. If nothing changes as a result of this committee's process, that law will have to be challenged in court.

Second, track two MAID is not end-of-life care, and any rebuttal that its opponents are seeking to interfere with end-of-life choices is specious and beside the point.

Third, there are three possible ways to interpret why our government did not appeal Truchon: because of political calculations that had nothing to do with the issue before the court; because a grievous and irremediable disability is somehow akin to end of life insofar as it is believed to be the end of meaningful life, or a life of value; or because beyond the end- of-life context, there are sound policy reasons to terminate the lives of certain persons who desire death.

These reasons, it appears, would extend exclusively to disabled persons who suffer intolerably and request MAID. Presumably the government would oppose a special pathway to MAID for other suffering persons who are not disabled, such as women trapped in conditions of violent domestic abuse, or parents bearing the irremediable grief of the sudden death of an only child.

Of these three explanations, the first would be unconscionable; the second, unacceptable; and the third, both disingenuous and discriminatory.

I therefore take as my starting point that track two is not an expression of equality. It is an exemption to equality.

However, track two is embedded in law, so here we are. The genie is out of the bottle, and we are left counting our dead. That the government that brought us track two is now seeking ways and means to ensure the “protection” of people with disabilities is a hard pill to swallow.

While practitioners lawfully administer the three-minute procedure that turns life into death, we now spend every waking hour, every moment and resource not already spent on our own survival throwing out lifelines to pull our disabled kinfolk back from the vortex that funnels them into the beckoning arms of track two MAID.

We pour cash into GoFundMes for food, shelter, medicine and therapy. We pour our hearts into rescue efforts for friends and strangers, bearing witness to the injustice that afflicts them. We rigorously record every tragic case where our efforts failed, or came too late. I believe you call these “anecdotes”.

We are not trained or resourced for any of this, but our people are dying, and we must step up to save them.

You have heard a consistent message from disability rights defenders to stop the carnage of track two. You must do everything within your power to reinstate the equality-affirming requirement for reasonably foreseeable natural death, and delay indefinitely any further expansion of track two MAID.

While you are at it, shore up the requirements for track one MAID, at the very least, by explicit affirmation of existing guardrails in the law that have been quietly set aside in actual MAID practice and discourse.

These measures will save lives, but they will not restore equality or undo the incalculable damage from a catastrophic social experiment. That is because much of the harm that was unleashed as you celebrated the passage of Bill C-7 was somehow beyond your imagining.

The underlying message of track two was clear, and it entered our cultural bloodstream with the speed of an infectious pathogen. The toxic notion that life with disability is optional, and by extension, dispensable, is now in the ether. We are detecting its presence in everyday discourse in unsolicited coaching from social service gatekeepers, crisis-line workers and ordinary citizens having their say in letters to the editor of the local paper.

MAID has swiftly been normalized as a way to relieve the cost and toil of those who are “burdened” with our care. Its euphemistic framings have not fooled anyone, and everyday plain-spoken Canadians are giving voice to the law's subtext. We have important examples to share.

Track two MAID assaults disabled people everywhere. It harms us through its discriminatory formulation and effects that undermine rather than expand our equality.

So much to say, so little time; so much to grieve, so little hope.

[The Joint Chair, Hon. Yonah Martin]

Thank you, Dr. Frazee.

Next I'll invite Professor Isabel Grant for her remarks.

You will have five minutes, Professor Grant.

[Professor Isabel Grant, Professor, Allard School of Law, University of British Columbia, As an Individual]

Thank you very much.

While I'm grateful for the opportunity to speak to you today, I do so with a profound sense of despair over what is happening with track two MAID. No matter how many people tell you that Bill C-7 is dangerous and no matter how many people die because they can't afford to live, it feels like a runaway train careening towards a human rights disaster. Ableism is so deeply embedded in our political and social structures that we don't see it as ableism but rather as a form of common sense.

The Supreme Court of Canada describes discrimination against people with disabilities as being premised on a distorted view that disability is a flaw that needs to be fixed or eradicated. It is precisely this ableist view of disability that fuelled Bill C-7 and is now killing disabled Canadians.

This ableism, sadly, has also permeated these hearings. Imagine that you are disabled. Perhaps you live in a one-room apartment. Perhaps you need diapers to deal with your incontinence. You've been listening to these hearings and heard your legislators talk about whether it would be better to be dead than to be like you. Far from feeling that your autonomy has been enhanced, you feel demoralized and depressed. You tell your doctor you are struggling, but she just reminds you that you are now eligible for MAID. Is it any wonder that so many disabled Canadians feel devalued and afraid?

If you take only one thing from my words today, it is this: There is only one safeguard that will protect people with disabilities from wrongful deaths, and that is reasonable foreseeability of natural death. That is the only safeguard that can prevent people from dying because they are too poor, too isolated or too exhausted from fighting for their survival to continue living. Death is the great equalizer. Everyone dies, and this is the only safeguard that removes making value judgments about the worth of disabled lives from the equation.

It is impossible to separate the suffering caused by disability from the suffering caused by the social, economic and political accompaniments of disability. If I cannot access smoke-free housing, is that my multiple chemical sensitivities or is that the inadequacy of social housing? If I can't afford an apartment with an elevator, is that my disability or my poverty? If I am facing institutionalization at 40 because the government won't provide me with home care to ensure I can get to the bathroom at night, is that my disability or is that the abject failure of the state to provide the basic necessities of life?

These situations have led to the deaths by MAID of real people who did not want to die. This is a system that would not provide Sathya Kovac with home care but gave her death by a house call. She wrote her own obituary before her death, saying, “It was not a genetic disease that took me out, it was a system.”

The Supreme Court of Canada has held in the death penalty context that one wrongful death is too many. I ask you how many wrongful deaths are too many for track two MAID? To those who say that MAID is just another form of health care, remember that it is legislated as an exemption to murder and aiding suicide, and that is the only reason Parliament has any jurisdiction. The Criminal Code makes explicit that ending a life is so serious that we don't allow people to consent to their own deaths. The MAID regime makes an exception to that, but only for disabled Canadians. Only their lives are not worth saving. How can you not see that this is discriminatory?

It is irresponsible to delegate the definition of murder and aiding suicide to doctors and ask us to trust a health care system that is strapped for resources and near the breaking point. When we look at Canada's record of eugenics, from residential schools to warehousing of the mentally ill and the sterilization of indigenous and disabled women and girls, we see that doctors were deeply implicated in all of these.

This government has focused not on eradicating the suffering of people with disabilities but rather on eradicating the sufferers. I urge this committee to take meaningful steps to prevent the impending human rights catastrophe that will be MAID for mental illness and to put an end to track two MAID.

Thank you.

[The Joint Chair, Hon. Yonah Martin]

Thank you, Professor Grant.

Last, we'll turn to the room.

Ms. Megan Linton, Ph.D. candidate, the floor is yours.

[Megan Linton, PhD Candidate, As an Individual]

Thank you.

Thank you for having me here on the unceded territories of the Algonquin people.

I research institutions for disabled people, an ongoing phenomenon stretching back more than a century and a half in Canada. As a result, I have sifted through hours of class action settlements and years of inquests, archives and interviews with survivors, all replete with the stories of death of friends, roommates, fellow inmates and disabled people who died by suicide, who hanged themselves from the rafters or died by suicide years after they had escaped the institution but were still haunted by their experiences inside it.

For many years these suicides were a catalyst for great social change, resulting in government commissions and inquiries into these deaths. Last week Minister David Lametti expressed the intention of track two MAID being necessary because disabled people are unable to complete suicides.

As a researcher of institutions, I find the fallacy of this argument troubling.

For the last century and a half, disabled people have been trapped in institutions away from their communities, reduced to a point of efficiency, a mere practicality. These institutions, which were used as tools for eugenics, removed disabled people from society and prevented their reproduction.

Today the same logic is maintained in institutions, where access to pleasure, leisure or pain management is seemingly non-existent. Instead, these institutions, such as prisons, long-term care homes and psychiatric institutions, maintain conditions of neglect, isolation and such disregard for individual autonomy that it produces depression and suicidality both in people inside the institution and in those who fear it in their future. People are very clear in their discussions with me: They would rather die than live in an institution.

Historically, deaths have been one of the few windows into institutions—sometimes murky windows, as in the case of the Huronia Regional Centre, where the deaths were hidden away in mass graves without markers or names. The view into institutions, no matter how murky, is a view into austerity and privatization that yield bedsores, neglect and forced feeding.

We had a view inside the institutions where people use MAID, such as Chris Gladders' retirement home, before you passed track two changes. There, feces stain the floor. Instead of cleaning it up, you made changes to expand track two. Now the deaths have become so frequent that we are haunted by the possibility of loss at all times.

Because of track two MAID, disabled people are dying en masse in institutions they had been fighting to leave. These were beautiful lives. As disabled persons, we look into the windows of these institutions and we fight as hard as we can for a way out for all of us, not just for an individual through an individual death.

You ask us for the protections of disabled people. It is clear that track two MAID must be ended.

When you look inside these windows smashed open by dead bodies, you see people suffering from the conditions that you yourself created. Instead of offering a solution, a help out the door through provisions of accessible housing, home care and pain management, you offer people death.

Do not be mistaken: This provision of death for disabled people under track two MAID is eugenics, and it must be repealed as soon as possible.

We must look at the political economy for the timing of these decisions. Why now, with the increase of pandemics and incurable illnesses, such as COVID and long COVID? Why now, with pandemic health care rationing and with health care under the budget axe?

The expansion of MAID must be viewed within the context of the economic order we live under that is eviscerating the social contract by encouraging government to retreat from its responsibilities for the public's welfare and to instead kill us. You feel generous providing mercy from the austerity that you have designed.

To all of you, disabled people do not need your help to die. You have been killing us for years. We need your help to get out of the institution you trapped us in. The only safeguard against MAID is foreseeable death.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much.

Thank you to all of our witnesses for your testimony this morning.

We'll go into our first round of questions.

We begin with Mr. Cooper, who will share the five minutes with Ms. Vien, so it will be three minutes followed by two minutes.

Mr. Cooper, the floor is yours.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Madam Co-Chair.

Thank you to the witnesses for your compelling testimony.

Dr. Frazee, I'm going to ask you two questions, and I'll ask you to just answer them both, because I have only three minutes.

You spoke about the shoring up of existing requirements under track one. Could you elaborate upon what you mean by shoring up and what recommendations you would have?

Speaking of shoring up with respect to track one, do you have any recommendations on additional safeguards for track two, recognizing of course that the requirement of death being reasonably foreseeable should never have been removed?

Finally, you spoke of the discriminatory effects that MAID is having on the kinds of things that ordinary citizens say about it. Can you provide the committee with examples of that?

[Dr. Catherine Frazee]

Thank you, through the chair.

I'll tackle the first question first and quite briefly. I can say more in writing if you wish.

There are some very significant phrases in our existing MAID law that are being overlooked. Perhaps I can give two examples. One is the meaning of the word “natural” and the phrase “natural death is reasonably foreseeable”. Reasonably foreseeable natural death is not the same thing as reasonably foreseeable death. A plain reading of the phrase signalled to me that behaviours such as voluntary starvation and other self-destructive acts do not fall within the category of reasonably foreseeable natural death. That is a distinction that is unfortunately moving people into the track one situation incorrectly and, I would suggest, unlawfully.

The other very important phrase—and this would affect both track one and track two—is the phrase “is caused by” in paragraph 241.2(2)(c). The intolerable suffering that is at the heart of MAID eligibility has to be tied directly to a medical condition. It excludes suffering, such as Professor Grant and Ms. Linton have described, that is predominantly socio-economic in nature. That is the major factor in many cases.

I believe that is contrary to paragraph 241.2(2)(c). I think clarifying these intended meanings in the way the law is drafted would go a long way towards preventing unlawful deaths and enforcing—

[The Joint Chair, Hon. Yonah Martin]

Dr. Frazee, I will interrupt you to say that if you wish to send us further details, you could do that in writing. We've come to the end of this time, so now I'll turn it over to Ms. Vien.

[Dominique Vien, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Thank you very much, Madam Chair.

Ms. Frazee, I don't have much time left and I'd appreciate a brief answer.

In your preliminary remarks, you said that the carnage of track two had to be stopped. What's your basis for saying that track two is a form of carnage?

[Dr. Catherine Frazee]

That is on the basis of the number of cases of concern that we have been documenting and referring to in our testimony over the past three meetings of people who clearly wanted to live being induced to access MAID as a form of escape from deplorable conditions of life.

[The Joint Chair, Hon. Yonah Martin]

There's one minute left.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Could you elaborate on shoring up track one?

[Dr. Catherine Frazee]

I'm sorry—is this directed to me?

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Yes. I'm sorry, Dr. Frazee. Could you elaborate on shoring up track one?

[Dr. Catherine Frazee]

I've given you the primary two examples. Clarify the issue of causation, of what must be the cause of suffering. A person's medical condition is the only cause of suffering for which MAID was designed and intended. It's the only exemption to the Criminal Code, and that really needs to be clarified, as does the definition of reasonably foreseeable and natural death.

[The Joint Chair, Hon. Yonah Martin]

Okay. Thank you very much.

Next I will turn to Madam Brière for five minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much, Madam Chair.

My question is for this morning's three witnesses.

Over the decades, we've seen that one of the fundamental principles of the modern movement on behalf of persons with disabilities has been to ensure equality in terms of access to programs and services that every member of society ought to be able to expect.

Given that the decision-making process for people considering medical assistance in dying is extremely personal and unique to their own particular situation, irrespective of the circumstances surrounding their status and their perspective, whether or not they identify as having a disability, and assuming that all the guarantees, safeguards and protocols are in place and working properly, what would you say to a person who is disabled and who has decided in a clear and well-informed manner to request medical assistance in dying in collaboration with medical teams?

[Prof. Isabel Grant]

Can I respond to that?

[The Joint Chair, Hon. Yonah Martin]

Professor Grant, go ahead.

[Prof. Isabel Grant]

I think we're saying that MAID is available to everyone, and why do we deny that to people with disabilities? I think the disability community feels that only track two MAID is available to them, and that we would like the government to be focusing on finding ways to make people's lives manageable and to alleviate suffering, rather than alleviating the people who are doing the suffering, because we think that this has been targeting people with disabilities.

As Ms. Linton said earlier, they don't need help dying; they need help living.

[Megan Linton]

I would respond to an individual who might make a well-informed decision to access MAID.

I'm 27 and I'm disabled. Most of my classmates don't have disabilities, and they don't have access to MAID because they don't have disabilities. I have access to it, and they don't. What is the equal access there? That doesn't really make sense to me.

However, the problem here is not the individual. It's not about one person making a decision. It's about the collective impacts. If one person is making a decision about MAID, as was the case with Jean Truchon, it's an individual choice and an individual response to a situation of social harms. For them it might be the worst possible situation.

I have been supporting people who have experienced suicidal ideation since I was 16, and I can assure you that people can make that decision and do make that decision. I have had so many disabled friends who have died by suicide, and I don't think I look at them badly for dying, but I am here to say we don't need help with that. We have access to that. We're dying en masse and we don't need that support. That's not what equal access to programs looks like. Equal access to programs would look like access to supports for the living community, not access to supports for dying.

I was a little bit confused by that question, because you said in your introduction the intention about there not being equal access to programs. We have special access to this one program only. The rest of systems in society we don't have equal access to.

We still have a segregated education system. People are unable to graduate from high school with a diploma. How is that equal access? Do you care about that equal access?

I'm not—

[The Joint Chair, Hon. Yonah Martin]

There's one minute left. Go ahead.

[Dr. Catherine Frazee]

I will just quickly endorse what my fellow panellists have said.

With respect, again, through the chair, the premise of the question is flawed. This is not a matter that challenges the notion that disabled people should have equal access and opportunity. Absolutely, we agree with you 100% on that, but track one is not available to non-disabled persons. That begs this question: Why is it made specially available to us, given its very substantial implications and harmful consequences?