The upside-down logic of the latest Charter challenge against Canada's MAID law

A coalition of “disability rights” advocates is launching litigation against an element of the federal medical aid in dying (MAID) legislative regime that permits access to MAID for those whose deaths are not “reasonably foreseeable”.

There are multiple oddities about this Charter challenge. The law had in fact been amended to expand access to people suffering intolerably from irremediable medical conditions but whose death are not reasonably foreseeable after a successful Charter challenge on the basis that the original legislative regime unduly restricted access to those near death. In the Supreme Court’s landmark decision in Carter v Canada, where the Court held that a prohibition against “assisted suicide” (as the Criminal Code used to refer to it) unreasonably infringed the right to life, liberty and security of the person where an individual has the capacity to make an informed decision and “has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

Parliament’s initial legislative response to Carter artificially imposed a “reasonably foreseeable” death requirement that risked limiting access to MAID to those suffering from a terminal condition. A Quebec trial court deemed this limitation unconstitutional in a case called Truchon. The federal government decided to amend the legislation rather than appeal the decision.

I have not been able to see a full statement of claim from the litigants, but among their arguments is that allowing MAID access in the context of non-terminal cases, or where death is not imminent, leads to “premature deaths”. A key concern is the choices some patients are making: "We are witnessing an alarming trend where people with disabilities are seeking assisted suicide due to social deprivation, poverty, and lack of essential supports," according to one of the organizations. (Note: the vast majority of MAID services are delivered in the context of terminal illness. The alleged ‘alarming trend’ is happening in the context of a subset of a subset of MAID cases).

Another claim is that MAID is only available to people with disabilities, and thus the law effectively targets a Charter-protected group (disability being an enumerated ground under section 15’s equality rights protections). If disability is defined by having an irremediable medical condition, then of course eligibility is confined to those with a disability: to imply the law targets a category of people in some nefarious way is the most pernicious and disingenuous framing possible. The key question is whether a claimant is suffering intolerably from an irremediable condition, and that they are making an informed decision about their own end of life care.

One of the major debates that occurred surrounding MAID was the question of whether access to MAID will diminish public supports for palliative care, improvements to health and mental health care, or broader state welfare supports for people with disabilities who desperately require better financial assistance to have a meaningful quality of life. In addition to this important and valid concern, the national and international media have helped to stir up a moral panic over Canada’s MAID regime on the basis of a handful of anecdotal stories of people allegedly pursuing MAID by taking into account factors that some people view as abhorrent, such a woman who could not find better housing while suffering from a condition causing severe sensitivity to chemicals like cigarette smoke in her apartment building.

As a result of such stories, critics have likened Canada’s MAID regime to eugenics, with unsupported claims that the “floodgates” have opened for people to apply for MAID on the basis of poverty. Over on his Substack, Eric Mathison, a bioethics researcher, has done an admirable job debunking many of the misleading or empirically questionable claims of MAID' critics. For just a few examples, see here, here, and here (the third post directly addresses the anecdote in the previous paragraph).

The broader ethical and moral aspects of the debate are important, and will likely play a considerable role in the legal case being brought forward, but for the immediate purposes of this post I want to focus on the nature of Charter rights themselves.

What this claim basically amounts to is an assertion that it is a violation of some people’s Charter rights (be it their equality rights or their section 7 rights) for the government to allow individuals to make informed life and death decisions with their doctors about the end of their lives. This is, in a sense, the inverse of a positive rights claim: where previously the overriding rights issue has been whether the Charter permits governments to prohibit or limit the rights of individuals to make such decisions, the litigants here seem to be arguing that now the Charter somehow obligates governments to prohibit or limit the autonomy and medical decisions of individuals. It is a logic that not only goes against the clearly established holdings in Carter and Truchon, but that goes against the very idea of the Charter as protection against government interference with personal liberty. I can’t think of an analogous case where a government has been obligated by the Charter to prohibit an activity implicating section 7 rights.

Implicit in the arguments presented is the idea that, in order for someone with an irremediable condition who is suffering intolerably - but who is not terminal or otherwise near death - to access MAID, we would have to first eliminate any other life circumstances that might also influence their decision. But this is a mirage. For one thing, it would demand a society that does not exist: one with an optimal welfare state, or a lack of scarcity (or that just made better choices). Such a decision would do nothing to improve welfare or service delivery, it would merely condemn the affected category of people to their endless suffering against their wishes. More importantly, by targeting access to MAID as ‘the problem’ rather than the failure to provide more robust supports, the Charter challenge aims entirely at the wrong target.

It is also important to note that 78 percent of Canadians supported removing the reasonably foreseeable death requirement. Normally, I would argue that public opinion hardly matters in a Charter rights context. But here’s the thing, an identical proportion of people with a disability - 78 percent - also supported removing the requirement. In other words, these disability rights organizations do not speak for all, or even most, people with disabilities, and certainly not the people who seek MAID and whose rights they want to compel the government to violate.

We should not countenance restrictions on bodily autonomy or life and death medical care among people who have the necessary capacity to make an informed judgment about their lives. Broader life circumstances will always play an important role in such decisions. If we intrude on that autonomy for fear that some subset of people will be influenced by their financial status, should we also be delving into other factors, like social isolation, or a lack of romantic/sexual prospects? The factors that might play a conditioning role on decisions and their timing are virtually endless, and the state has no business weighing them on individuals’ behalf.

While we should absolutely continue to push hard to deal with the systemic problems that leave people without adequate financial or service-based supports to live a life worth living, the solution cannot be to violate the right to autonomy. Most pro choice people, for example, would not countenance new restrictions on abortion services just because there is a subset of people who engage in sex selective abortions. That road leads to nothing but a moral morass, with the government now intruding on autonomy based on the fact that some people object to how others exercise it.

Moreover, it is simply false to say that “John Doe received MAID because he lacked housing.” If there are cases where people do not meet the criteria, 1) capacity for consent, 2) and an a) irremediable medical condition, causing b) intolerable suffering, but nonetheless receive MAID, then those should be investigated. But that is not the litigants’ claim. They are arguing that the entire Track 2 of eligibility is a Charter violation because people who meet these fundamental criteria are considering their entire life circumstances when making decisions about their own lives. This would condemn all of the people in Track 2 eligibility, including those who aren’t making decisions based on social or economic need, to years or even decades of intolerable suffering. Whatever subset of people making decisions that others might lament or disagree with is not a valid basis for a Charter challenge, and I hope the courts dismiss it.