Introduction

Webcast archive: Disability rights activists call for Truchon appeal

This week, we discuss an open letter from two leading disability rights organizations calling for an appeal of the Truchon decision, and some brief updates on international news.

Webcast archive: Disability rights activists call for Truchon appeal

In this episode of Euthanasia & Disability, Amy Hasbrouck and Christian Debray discuss:

  • Disability rights activists call for appeal of Truchon decision
  • Dutch prosecutors bring consent questions to Supreme Court
  • Italy’s constitutional court rules assisting suicide is not always a crime

Please note that this text is only a script and that our webcast contains additional commentary.

DISABILITY RIGHTS ACTIVISTS CALL FOR APPEAL OF THE TRUCHON DECISION

  • The Council of Canadians with Disabilities (CCD) and the Canadian Association of Community Living (CACL) have issued an open letter to Attorney General David Lametti, asking him to appeal the Truchon decision.
  • The letter comes two days after Prime Minister Trudeau said in a French-language debate that he would not appeal the Truchon decision, if he were re-elected.  However since the appeal deadline falls before the federal election, the Attorney General will have to request an extension, file an appeal, or lose the opportunity to appeal the case if action isn’t taken.
  • As of October 4, 65 disability organizations had signed onto the open letter, which is being released today.  The text of the letter reads:
  • 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, effectively limiting Parliament’s capacity to pursue social targets such as substantive equality and inclusion.
  • Justice Christine Baudouin 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.
  • 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.
  • The 65 organizations that have signed the letter so far include:
    • Council of Canadians with Disabilities
    • Canadian Association for Community Living
    • ARCH Disability Law Centre
    • People First of Canada
    • Canadian Mental Health Association
    • Canadian Disability Studies Association / Association candienne d’études sur le handicap
    • Institute for Research and Development on Inclusion and Society
    • L’Arche Canada
    • Canadian Institute for Inclusion and Citizenship
    • The DisAbled Women’s Network of Canada / Réseau d’Action des Femmes Handicapées du Canada (DAWN-RAFH Canada)
    • Barrier free Canada – Canada sans Barrières
    • Toujours Vivant-Not Dead Yet
    • Communication Disabilities Access Canada
    • Société québécoise de la déficience intellectuelle / Quebec Intellectual Disability Society
    • NWT Council for Disability
    • Independent Living Centre London and Area
    • British Columbia Aboriginal Network on Disability Society
    • Inclusion Selkirk
    • National Network for Mental Health
    • Families for a Secure Future
    • Citizens With Disabilities – Ontario
    • Nova Scotia League for Equal Opportunities
    • Collectif des médecins contre l’euthanasie / Physicians’ Alliance against Euthanasia
    • Coalition of Persons with Disabilities Newfoundland and Labrador
    • Interdisciplinary Master’s Program – Disability Studies, University of Manitoba
    • Nova Scotia Association for Community Living
    • Fredericton Association for Community Living
    • Disability Alliance BC
    • Inclusion BC
    • Resila INC
    • Ontario Federation for Cerebral Palsy
    • Euthanasia Prevention Coalition
    • Community Inclusion Society
    • Association for Reformed Political Action
    • Bridges to Belonging Waterloo Region, Ontario
    • Body BRave
    • Community Living Victoria
    • Community Ventures Society
    • Inclusion Alberta
    • Bethesda
    • Disability Rights Coalition of Nova Scotia
    • Living with Dignity / Vivre dans la Dignité
    • Community Living Ontario
    • The Manitoba League of Persons with Disabilities Inc.
    • Burnaby Association for Community Inclusion
    • Christian Medical and Dental Association of Canada
    • Prince Edward Island Association for Community Living
    • posAbilities Association
    • New Brunswick Association for Community Living
    • Inclusion Saskatchewan
    • Inclusion Winnipeg
    • Community Living Manitoba
    • Canadian Physicians for Life
    • Keremeos Measuring Up Team (British Columbia)
    • Disability Studies Program, Kings University College at Western University
    • Alliance for Equality of Blind Canadians (Toronto Chapter)
    • Canadian Federation of Catholic Physicians and Societies
    • PLAN
    • PLAN Edmonton
    • PLAN Calgary
    • PLAN Okanagan
    • Bridges to Belonging (Waterloo)
    • Christian Legal Fellowship / Alliance des chrétiens en droit
    • Newfoundland and Labrador Association for Community Living
    • Inclusion Yukon
  • The Attorney General can be reached by email at webadmin@justice.gc.ca or by phone at 613-957-4222

DUTCH PROSECUTORS BRING CONSENT QUESTIONS TO SUPREME COURT

  • Prosecutors in the Hague are seeking clarification of legal questions surrounding the dismissal of charges against a nursing home doctor who euthanized a 74-year-old woman with dementia based on an advance directive, despite indications that she wasn’t ready to die.
  • We first reported this story in 2017 when the committee that reviews euthanasias in the Netherlands declared that putting a sedative in the woman’s coffee and having her physically restrained during the injection still amounted to “good faith” compliance with euthanasia safeguards.  Prosecutors brought charges against the doctor last fall, which were dismissed by a court in September.
  • The request for clarification is not an appeal, and the doctor is not at risk for punishment. The prosecutor’s petition to the Supreme Court is only a request for guidance on what to do where an incapable person gives mixed signals about their wishes.

ITALY’S CONSTITUTIONAL COURT RULES ASSISTING SUICIDE IS NOT ALWAYS A CRIME

  • A constitutional Court in Italy has ruled that assisting suicide may be legal if certain conditions are met.  According to the Guardian, Anyone who “facilitates the suicidal intention … of a patient kept alive by life-support treatments and suffering from an irreversible pathology” should not be punished under certain conditions.
  • The ruling came in the prosecution of Marco Capato, who drove Fabiano Antoniani to Switzerland where he had assisted suicide in 2017.  Antoniani, a.k.a. DJ Fabio, who was paralyzed and blinded in a 2014 car accident, did not have a terminal illness.  The court said assisted suicide may be permissible if the person’s condition causes “physical and psychological suffering that he or she considers intolerable,” and with approval by a local ethics committee.  Also, public health authorities would have to verify that all conditions are met.
  • The ruling also calls on Italy’s parliament to legislate on the issue.