When Heather Walkus went to a hospital for physiotherapy two months ago after injuring her hip, she never expected to be asked if she had considered a medically assisted death.
Walkus uses a wheelchair because of multiple sclerosis. Using the wheelchair has caused problems for her hip. She also has low vision.
At the hospital, she says a physiotherapist asked her if she had ever considered MAID. The comment was said as casually as one might compliment her sweater, she says.
While she was concerned by the physiotherapist’s suggestion, she was not surprised. A year-and-a-half earlier, a nurse had asked if she had considered MAID when she was being treated for pneumonia, she says.
For Walkus, the national chairperson of the Council of Canadians with Disabilities, these stories have become all too common since 2021. That was the year the Criminal Code was changed to allow people who are sick or disabled — but not dying — to be eligible for medical assistance in dying (MAID).
“They’re beginning to normalize the idea of people with disabilities dying,” she said. If she did not have a history of advocacy, she does not think she would have been able to resist the suggestion of MAID, she says.
“Many people think the medical profession and the people in it are the people that know best. And many people take their doctors’ and their support teams’ word seriously, and if they’re thinking you must die, what are you doing trying to live?”
For Walkus, the only way to guarantee people with disabilities are not encouraged to seek MAID when they are not dying is to change the law.
On Wednesday, a coalition of disability organizations — including the Council of Canadians with Disabilities — and two individuals filed a Charter challenge to Canada’s MAID laws in Ontario’s Superior Court of Justice. They are arguing that allowing MAID for sick or disabled people who are not dying violates constitutional rights to life, liberty and the security of the person and equality.
Their application asks the court to strike down changes to the law that were made in 2021 that allow people whose deaths are not reasonably foreseeable to be eligible for MAID.
It does not ask for the courts to strike down the law that permits MAID for people whose deaths are reasonably foreseeable.
“A law that allows people with disabilities to access state-funded death in circumstances where they cannot access state-funded supports they need to make their suffering tolerable is grossly disproportionate,” the notice of application says.
“There is no deprivation that is more serious and more irrevocable than causing someone who is not otherwise dying to die.”
The Charter says that people with physical and mental disabilities must be treated equally under the law and not face discrimination because of their disabilities.
The applicants in the case — the Council of Canadians with Disabilities, along with Inclusion Canada, the Disabled Women’s Network (DAWN) of Canada and Indigenous Disability Canada/The British Columbia Aboriginal Network on Disability Society — say it is discriminatory to allow people with disabilities to be the only Canadians who are eligible for MAID even if they are not dying.
These changes “increase the risk that persons with disabilities will be induced to end their lives as a response to suffering,” the notice of application says. “This is a risk that Parliament has exclusively imposed on persons with disabilities.”
Track 2
When Canada legalized MAID in 2016, it was restricted to adults with grievous and irremediable illnesses, diseases or disabilities who were experiencing enduring and unbearable physical or psychological suffering that could not be relieved in a manner they deemed acceptable and whose natural deaths were reasonably foreseeable.
The law does not define what reasonably foreseeable death means.
In 2019, a lower Quebec court ruled that the requirement for death to be reasonably foreseeable was unconstitutional. The federal government did not appeal the decision.
In 2021, Parliament passed a law removing the requirement that one’s death be reasonably foreseeable to access MAID. This created what it called two tracks for MAID: Track 1 for individuals whose deaths were reasonably foreseeable, and Track 2 for individuals whose deaths were not.
The organizations bringing the Charter challenge say this change violates the security of people with disabilities because medical professionals may suggest they consider MAID, instead of seeking medical treatment.
Track 2 MAID “fundamentally changes the relationship of patients with disabilities and their medical or nurse practitioners and other care providers,” the application says.
When medical professionals view MAID as an option for a person with a disability to end their suffering, that “can shape that person’s perception of their value, dignity and the degree to which they are, or are perceived to be a burden.”
This violates a person’s security, the application says.
“Medical assistance in dying (MAID) is a complex and deeply personal issue,” Ian McLeod, a spokesperson for the Department of Justice told Canadian Affairs in an emailed statement. “The Government of Canada is committed to ensuring our laws reflect Canadians’ needs, protect those who may be vulnerable, and support autonomy and freedom of choice.
“We will further present the Government’s position in our submissions to the Court.”
100 per cent increase
Since 2016, there have been nearly 45,000 MAID deaths in Canada.
In 2022, MAID accounted for four per cent of all deaths. That year, 463 people died under MAID Track 2 — a more than 100 per cent increase from 2021, when 223 people died under Track 2.
Walkus, with the Council of Canadians with Disabilities, says she expected this would happen when MAID was first legalized in 2016.
“We saw [the changes] coming and have fought against it every time it came up,” she said in an interview.
Neither of the individual plaintiffs — who both have disabilities — were available for interviews for this story.
However, the notice of application says they have both experienced and will continue to experience harm because of Canada’s MAID laws. In one instance, one of them had a clinician at a hospital discuss MAID with her in positive terms, “even though she was seeking help to live and did not ask for information about how to die.”
Requests to repeal the expansions legalized in 2021 are not new.
In February, the organizations launching this challenge, along with ARCH Disability Legal Clinic, asked the federal government to repeal MAID Track 2. They also asked Ottawa to never allow MAID for people whose sole condition is a mental illness.
Canada is set to allow MAID for people whose sole condition is a mental illness in 2027.
The challenge launched this week seeks to strike that down as well, Krista Carr, executive vice president of Inclusion Canada said at a press conference Thursday.
This is not the only Charter challenge to Canada’s MAID laws.
Last month, two individuals, along with the organization Dying with Dignity Canada, filed a Charter challenge arguing that excluding MAID for people whose sole condition is a mental illness violates their rights.
‘Deeply concerned’
Many have voiced concerns about how Canada’s MAID laws impact people with disabilities. The Canadian Human Rights Commission has twice raised concerns that Canadians with disabilities were turning to MAID because of non-medical reasons, like poverty or lack of appropriate housing.
The commission “remains deeply concerned by reports that people with disabilities are choosing medical assistance in dying (MAID) because they cannot access the basic supports and services they need to live with dignity,” it said in a February statement.
Walkus knows some of the disabled Canadians who died by MAID. They spent years advocating for better supports and services, she says.
“It didn’t happen overnight,” she said, referring to their decision to ultimately choose death by MAID.
“It was years and years of reducing services, reducing supports, reducing the hope of something so the light at the end of the tunnel was the oncoming train of MAID. That’s not OK. We don’t do that to any other group in Canada.”
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