International Body rules against Track 2 Maid

In a major review of Canada’s compliance with its treaty obligations under the United Nations Convention on the Rights of Persons with Disabilities, Canada has been found wanting, and among other actions, has been directed to repeal Track 2 MAiD. This is huge news!

To learn more about the process of the UN CRPD committee and how governments and civil society groups input into their work, there is a ton of information on ARCH Disability Law’s website. Basically, every 5 years, the government answers to the UN Committee in formal hearings, called a “Constructive Dialogue”. A “shadow report” created by civil society groups — in this case, a group formed of representatives of 53 Canadian disability groups (DPO’s) — is submitted to the committee in advance of the formal hearings. “The [Shadow] Report highlights key concerns of disability communities, including outdated disability concepts, poor jurisdictional coordination, and weak enforcement of CRPD rights.” Every country that signed and ratified the CRPD, including Canada, is expected to adhere to its 50 articles, and to demonstrate to the review committee that it is trying hard to live up to its commitments even when it isn’t quite there yet. They are expected to have a concrete plan to get there.

The report, called The Concluding Observations, reviews the country’s progress towards realizing the 50 articles spelled out in the CRPD. There are some areas in which Canada is making satisfactory progress, and the Committee recognizes those successes. However, they are unsparing in their critiques of other areas, particularly when it seems that the Government is making excuses, rather than demonstrating a sincere attempt at progress, and not engaging in their Constructive Dialogue, but instead delivering canned speeches and pre-cooked answers.

In the Concluding Observations, the committee criticized Canada for not having formalized “legally entrenched mechanisms for the close consultation and active involvement of persons with disabilities, through their representative organizations, including with Indigenous persons with disabilities, Black and other racialized persons with disabilities, on the Federal level and in the provinces and territories.” This will be something that the communities involved in writing the Shadow Report will be pressuring the new government to act upon after the current election. Their engagement of the disability communities has been selective and pro forma, and that needs to change!

There’s much more to digest from this meaty report, but I know you’re anxious to get to the part about MAiD. They get there in paragraphs 19 and 20. And they don’t mess around. Don’t worry if you don’t want to read the whole thing — I’ll summarize below.

Right to Life (art. 10) 

1. The Committee is extremely concerned about the 2021 amendments to the State Party’s Criminal Code through Bill C-7 that expanded the eligibility criteria for obtaining Medical Assistance in Dying (MAID), known as “Track 2” MAiD by removing the ‘foreseeable death’ criteria. The Committee recalls that similar concerns about Track 2 MAiD have been addressed directly to the State Party by the Committee on the Elimination of Discrimination against Women, the Special Rapporteur on the Rights of Persons with Disabilities and during the Universal Periodic Review. The Committee further notes that the Special Rapporteur on the rights of persons with disabilities, the Special Rapporteur on extreme poverty and human rights and the Independent Expert on the enjoyment of all human rights by older persons have stated that disability is not a reason to endorse medical assistance in dying. The Committee also notes with concern that:
   1. The federal government did not challenge the Quebec Truchon decision which fundamentally changes the whole premise of medical assistance in dying when natural death is reasonably foreseeable to a new program that establishes medically assisted dying for persons with disabilities based on negative, ableist perceptions of the quality and value of the life of persons with disabilities, including that ‘suffering’ is intrinsic to disability rather than the fact that inequality and discrimination cause and compound ‘suffering’ for persons with disabilities;
   2. The concept of ‘choice’ creates a false dichotomy by setting up the premise that if persons with disabilities are suffering, it is valid for the State Party to enable their death, with safeguards not guaranteeing the provision of support, and ableist assumptions deemphasising the myriad of support options for persons with disabilities to live dignified lives , and the systemic failures of the State Party to address the social determinants of health and well-being, such as poverty alleviation, access to healthcare, accessible housing, prevention of homelessness, prevention of gender-based violence, the provision of community-based mental health supports and employment supports;
   3. Evidence from the Ontario Office of the Chief Coroner and federal government data indicating that Track 2 MAiD is disproportionately accessed by women with disabilities and persons with disabilities in marginalised situations, and there is an upward trajectory of persons with disabilities killed through Track 2 MAiD;
   4. The expansion of Track 2 MAiD in 2027 to persons whose “sole underlying medical condition is a mental illness” and the proposed expansion of MAiD to include “mature minors” and advance requests for MAiD;
   5. The inadequate consultation process with Indigenous Peoples including non-status and off-reserve Indigenous persons with disabilities in relation to MAiD; 
   6. The absence of a federal independent oversight mechanism to monitor, regulate and handle complaints in relation to MAiD.
2. To ensure the right to life for persons with disabilities, the Committee recommends that the State Party, in close consultation and active involvement of persons with disabilities through their representative organisations:
   1. Repeal Track 2 Medical Assistance in Dying (MAiD), including the 2027 commencement of Track 2 MAiD for persons whose “sole underlying medical condition is a mental illness”;
   2. Not support proposals for the expansion of MAiD to include “mature minors” and advance requests;
   3. Significantly invest and implement comprehensive measures, at federal, provincial, and territorial levels to ensure the systemic failures in relation to the social determinants of health and well-being are addressed, such as poverty alleviation, access to healthcare, accessible housing, prevention of homelessness, prevention of gender-based violence, the provision of community-based mental health supports, care services at home and personal assistance, and employment supports;
   4. Strengthen distinctions-based, community-led consultation processes with Indigenous Peoples, including non-status and off-reserve Indigenous persons with disabilities, respecting the principle of self-determination; 
   5. Establish and resource a federal independent oversight mechanism to monitor, regulate and handle complaints in relation to MAiD.

In short, MAiD Track 2 violates the right to life of people with disabilities. It undermines their social inclusion and increases, rather than decreases, the social stigma that they face. To remedy this:

• Track 2 MAID should be repealed,
• ALL further expansion should be stopped,
• necessary investments in the social determinants of health should be prioritized, and
• a federal independent oversight mechanism must be established to monitor, regulate and handle complaints in relation to MAiD.

And because the UN doesn’t answer to Canada, nor does it depend on voters opinions, the Observations stand, and Canada will have to answer to the committee again in 5 years.