Canada’s Newest and Deadliest Human Right: Assisted Suicide for All

Lynne Cohen
January 10, 2021
Ever since the mid-1990s when Sue Rodriguez and Robert Latimer forced euthanasia onto the Canadian landscape, debate has been passionate and polarizing. In recognition of this controversy, the federal Liberals’ 2016 assisted-suicide legislation set strict limits on the procedure and promised a full review after five years. Barely three years later, however, the Trudeau government changed its mind. Now, a new law removing nearly every existing restriction sits with the Senate awaiting final approval. Lynne Cohen lays bare the legislation's deadly implications, the political machinations that brought us here, and how the entire concept of human rights has been stood on its head.

Canada’s Newest and Deadliest Human Right: Assisted Suicide for All

Lynne Cohen
January 10, 2021
Ever since the mid-1990s when Sue Rodriguez and Robert Latimer forced euthanasia onto the Canadian landscape, debate has been passionate and polarizing. In recognition of this controversy, the federal Liberals’ 2016 assisted-suicide legislation set strict limits on the procedure and promised a full review after five years. Barely three years later, however, the Trudeau government changed its mind. Now, a new law removing nearly every existing restriction sits with the Senate awaiting final approval. Lynne Cohen lays bare the legislation's deadly implications, the political machinations that brought us here, and how the entire concept of human rights has been stood on its head.
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With nearly everyone in Canada distracted by a pandemic and related mortality rates, the federal government has been quietly orchestrating what is likely to prove a far greater expansion in our country’s future death count. And in ways much more troubling than Covid-19.

Bill C-7 is Ottawa’s planned amendment to existing doctor-assisted suicide legislation. It proposes to substantially increase the range of people who qualify for so-called Medical Assistance in Dying (MAID) by dropping current restrictions on anyone whose death is not “reasonably foreseeable”, eliminating lengthy waiting periods and removing the requirement of mental competency immediately prior to the procedure. What few controls it proposes to retain – such as restricting its use by those suffering solely from mental illness – are likely to be swept aside by human rights complaints given the fact every other limitation has already been removed.

In normal circumstances, federal legislation proposing nearly unlimited suicide-on-demand would be expected to monopolize political, media and public attention and prompt numerous public demonstrations and other obvious expressions of interest ­– just as the original legislation did throughout the last decade. Not so today.

Assisted_Dying_Canada_Maid
The missing debate: Unlike the lengthy and heated public discussions that preceded the Liberal’s original Medical Assistance in Dying (MAID) law, the current process has been rushed and largely hidden from public scrutiny. (Pictured: a protest on Parliament Hill against Bill C-14, the 2016 legislation.)

Rather, this profoundly troubling bill was rushed through the House of Commons late last year while everyone was fixated on other matters and public gatherings largely forbidden. The proposed legislation now sits in the hands of the Senate where, in unusual fashion, hearings were held on the matter before the bill had even been passed by the House, in order to speed its passage. Its final fate will be determined when the Senate resumes sitting later this month ­– such haste the result of an entirely unnecessary February deadline. Euthanasia enthusiasts, both inside and outside government, are now eagerly anticipating the bill’s rapid passage into law without any major pushback from otherwise distracted Canadians.

For those who oppose the new legislation on moral or practical grounds, however, these are nervous times.

Where Canadians Stand on MAID

Proponents of medically-assisted suicide tend to wave away any need for careful consideration of the enormous changes proposed by Bill C-7 by claiming the concept already enjoys broad support among Canadians. Recent polling by Angus Reid, for example, suggests 77 percent of Canadians consider MAID to be “a basic human right.”

james_cowan_assisted_dying_canada_MAID
While MAID proponent James Cowan, a former Senator and current chair of the board of directors of Dying with Dignity Canada, claims most Canadians agree with loosening MAID rules, polling evidence suggests a majority have deep concerns about the future implications of such changes.

 James Cowan, a former Liberal Senator and chair of the board of directors of the pro-MAID lobby group Dying with Dignity Canada, recently stated in a press release that, “Canadians do not want to endure unnecessary suffering. Across regions, among health care professionals and among whose who self-identify as having a chronic physical or mental condition or disability, there is support for change to the existing law.”

Yet there is more to this story than the near-monolithic support Cowan claims, or that the polling figures appear to validate. A closer look at the Angus Reid results shows about one-third of Canadians firmly support assisted suicide, while a fifth strongly oppose it, often on religious grounds. Between these two poles, however, lies approximately half the country. While expressing “cautious support” for the concept, this near-majority of 48 percent of Canadians also have big concerns about the impact the new changes will have on Canada’s elderly and other vulnerable populations.

In particular, the middle bloc is worried that MAID-on-demand will quickly become a preference within the medical establishment, given the convenience of simply removing difficult patients rather than treating them. According to Angus Reid, 65 percent of Canadians agree that “the elderly and those with disabilities will feel more pressure to choose death in order to avoid being a burden on others.” An even greater majority worry that people with “mental-health issues like depression will choose death, rather than dealing with the underlying causes of their condition.”

The landscape of public opinion, in other words, is by no means solidly behind the notion that doctor-assisted suicide should be far more prevalent than it is today or that anyone who wants to end their life should be able to do so without complication or delay. Claims to broad-based support for MAID currently must properly acknowledge that Canadians have big worries about how it may be used in the future. The speed with which this new law is being rammed through the parliamentary process does not, therefore, properly reflect public opinion. So how did we get to be in such a rush?

The Path to MAID

A moment that galvanized Canada: The arrest and ultimate conviction of Saskatchewan farmer Robert Latimer for the 1993 killing of his disabled daughter Tracey spurred both advocates and opponents of MAID into action.

Canada’s long journey towards acceptance of death-on-demand began in 1994 with the initial conviction of Saskatchewan farmer Robert Latimer for second-degree murder in the killing of his severely-disabled 12 year-old daughter Tracey. Canadians on both sides of the issue were galvanized as Latimer’s case worked its way through various trials and appeals. “I was shocked,” recalls Alex Schadenberg, executive director of the anti-MAID organization Euthanasia Prevention Coalition in an interview. Even though Latimer at first lied about gassing Tracey to death with the exhaust fumes from his truck, he notes, “many Canadians, when you asked them, thought he was a loving dad who wanted the best for his child.” Since then, says Schadenberg, intending no pun “I have lived and died this stuff.”

Latimer’s case came shortly after the landmark 1993 Rodriguez case had been decided by the Supreme Court of Canada. Stricken with amyotrophic lateral sclerosis (ALS, or Lou Gehrig’s disease), Sue Rodriguez sued for the right to have her doctor kill her; she lost both at trial and on appeal. By 2015, however, the same Supreme Court of Canada – albeit with different judges – viewed basically the same set of circumstances in an entirely different way in Carter v. Canada. In this judgement, the Supreme Court ruled that Criminal Code provisions against assisted suicide were unconstitutional if someone was suffering from a grievous and irremediable medical condition. The highest court in the land then gave Parliament 16 months to write corrective legislation. Thus was born Canada’s existing MAID law in 2016.

Quebec_superior_court_assisted_dying_canada
Typically decisions upending existing legislation come from the Supreme Court of Canada (above), or appeal courts. Truchon is unusual in that it was rendered by the Quebec Superior Court – a lower court (below).

Because of the controversy and voluminous public and political debate that preceded the legalization of doctor-assisted suicide in Canada under the new Liberal government that year, the original MAID legislation included a requirement for a comprehensive review of the law in June 2020. This was tacit acknowledgement of the heated nature of the issue and its uncertain implications. Advocates and opponents alike were thus to be offered a chance to re-assess the situation. Unfortunately, this carefully-crafted compromise was tossed aside after just three years by the Truchon judgement, in which a judge declared Ottawa’s existing rules limiting access to MAID to those whose death was “reasonably foreseeable” to be unconstitutional as well.  

assisted_dying_canada_alex_schagenderg
Make a decision at 9 am, be dead by noon: Alex Schadenberg, executive director of the Euthanasia Prevention Coalition, lists many flaws with the new legislation, but none worry him more than the speed with which death could be granted.

Curiously, the Truchon decision did not issue from the Supreme Court of Canada, or even an appeal court, as is usually the case with law-upending judgements. Rather it came from the Quebec Superior Court – a lower court. It is almost unheard-of for a lower court to direct Parliament in this way. And even more unheard-of for Parliament to meekly comply without at least an appeal to push back. Yet, according to federal Minister of Justice David Lametti, “We decided not to appeal the Truchon… because we agreed that medical assistance in dying should be available as a means to address intolerable suffering outside of the end-of-life context.”

The government, in other words, changed its mind about its own legislation after just three years. And in doing so, put Parliament at the mercy of a precocious lower court’s timetable. The current race to meet a February deadline is thus a crisis of the Liberals’ own design. And the promised review of the situation-to-date is nowhere to be seen.

“It’s hard to know where to begin…”

“There is so much negative about this law, it’s hard to know where to begin,” says critic Schadenberg. “But my main objection is its same-day death provision.” He points out that a person could choose a MAID option at 9 am and be dead by lunchtime. “It’s a well-established fact that people change their minds about wanting to die from one day to the next,” he says. “With this new law, you don’t get a chance to reconsider.” Schadenberg also worries that Bill C-7’s removal of the requirement that a person’s natural death be reasonably foreseeable will lead to people who are not terminally ill choosing to die by MAID.

The new legislation does, however, propose to block MAID for people with mental illness. While that might seem like a well-grounded provision to protect a particularly vulnerable type of person, this criteria has created an entirely new controversy surrounding how broad the “right” to assisted suicide should be. Some advocates claim that excluding those suffering from mental illness represents another intolerable form of discrimination. Helen Long, CEO of Dying With Dignity Canada, recently argued in the Toronto Star that even this one modest limitation “will continue to deny some Canadians their right to MAID.” The right to kill oneself must presumably be offered to all without limit.

assisted_dying_canada_sue_rodriguez_jean_truchon_lee_carter
Three similar cases, three very different results: The court cases of (left to right) Sue Rodriguez in 1993, Lee Carter in 2015 and Jean Truchon in 2019 demarcate the rapidly changing legal foundation for doctor-assisted suicide in Canada. (Note: Carter was not terminally ill, but rather served as the lead plaintiff on behalf of her late mother, who travelled to Switzerland in 2010 to end her life.)

Not everyone agrees with Long, however. Krista Carr is executive vice-president of Inclusion Canada, a federation of advocacy groups for people with intellectual disabilities. She worries that those with mental illness will suffer discrimination from MAID for the entirely opposite reason. “Bill C-7 would allow people with disabilities – who are already undervalued in society – to die with medical assistance because they have a disability,” Carr told Ottawa radio talk show host Rob Snow in December. Only by limiting MAID to people whose death is “reasonably foreseeable”, she argued, can such discrimination be avoided.

krista_carr_bill_c_7_includion_canada_assisted_dying
“Bill C-7 is our worst nightmare”: Krista Carr of the advocacy group Inclusion Canada told the House of Commons Justice Committee in November (pictured) that “our biggest fear has always been that having a disability would become an acceptable reason for state-provided suicide.”

Carr’s fear is that people with disabilities will end up most at risk of being euthanized against their wishes, even those who can get effective medical treatments for their conditions; in a subsequent presentation to the House of Commons Justice Committee, she called the proposed legislation “our worst nightmare.” According to Statistics Canada, more than 5.3 million Canadians – nearly 16 percent of the population — are disabled in a way that impacts their quality of life. Of these, more than 200,000 are children. How is it not discriminatory, Carr asks, to permit MAID in cases of disability or associated suffering when persons without disabilities are provided ample medical help and resources.

Whither the Hippocratic Oath?

The issue of assisted-suicide has also profoundly shifted the official policies of medical organizations and the thinking of thousands of Canadian physicians. My late father, a cardiologist who dealt with many pain-filled, dying, often elderly patients throughout his 33-year medical career, considered killing them unthinkable. “Never,” I recall him stating categorically when asked by his teenaged children under what situations assisted suicide might be considered an appropriate response to a patient’s suffering. “It’s not right, and it will never be legal.”

While his prediction has been proven wrong, he was steadfast in his belief in the Hippocratic Oath every medical doctor once took. The ancient Greek oath required new physicians to swear they will keep their patients free from harm and “neither give a deadly drug to anyone who asked for it, nor…make a suggestion to this effect.” My father bluntly put to me and my older brother: “How could a physician promise to do no harm, then euthanize a patient?” Today most Canadian and American medical schools make up their own oaths.  The Canadian Medical Association (CMA) once shared my father’s position that killing patients was wrong. When the law changed, however, so did the organization’s views. Writing in the British Medical Journal in January 2019, Jeff Blackmer, the CMA’s executive vice-president of international health and an associate professor at the University of Ottawa, explained how the doctors’ organization attempted to stay neutral throughout the MAID debates. “The organisation would support all its members, regardless of their views, in deciding whether to participate in MAID,” Blackmer noted. “Nothing… would compel physicians to provide assistance in dying.” Nothing would prevent it, either.

Inset_Cohen_dad__canada_assisted_dying_maid
“How could a physician promise to do no harm, and then euthanize a patient?” The author with her late father Dr. Goodman Cohen, who practiced as a cardiologist in Ottawa for 33 years.

Like all efforts to keep to the middle of the road, the CMA’s position is inherently contradictory. How can the CMA effectively support a doctor who believes she shouldn’t kill her patients while enabling other members to do just that? It clearly can’t. On great moral quandaries, it is always necessary to take a stand. This dilemma was articulated last month by three medical doctors, among them Leonie Herx, past-president of the Canadian Society of Palliative Care Physicians. “Our role as physicians should al​ways be to first advocate that our patients access all rea​son-​able sup​ports for meaningful life without suffering,” Herx and her co-authors wrote in the London Free Press. “As doctors we should be in​stilling hope, sup​-porting resilience and using our expertise to find creative solutions to ad​dress health and well-being. Instead, we would be re​quired to suggest assisted suicide as an option if this bill be​comes law.”

Herx and her co-authors put the consequences of the proposed law into vivid context through several real-life examples. Spring Hawes is an entrepreneur, former city councillor in Invermere, B.C. and NDP candidate in the recent provincial election, who has been living with a spinal cord in​jury for 15 years. “As dis​abled people, we are conditioned to view our​selves as bur​den​some,” Hawes explains. “We are taught to apologize for our existence, and to be grateful for the tolerance of those around us.” A choice to die is not a free choice if a person’s mere existence is predicated on good behaviour and agreeableness.

Another example is Gabrielle Peters, a disabled blogger in Vancouver who had a health-care professional sit by her bed​side and urge her to con​sider death after her partner and caregiver had announced he was leaving her because she was “too much of a burden.” Peters’ blog offers an impassioned plea to the Senate to stop C-7, “because I know passage of this bill will result in preventable deaths of disabled people.  I know this because I know those already happen. I know they already happen because I was almost one of them.” 

gabrielle_peters_canada_assisted_dying_maid
Gabrielle Peter’s recent blog post warning of the consequences of broadening access to MAID to include disabled people.

Mark Pickup, gravely ill and disabled with chronic and progressive multiple sclerosis, also does not mince words. “It’s going to be wide open season on the sick, disabled and depressed,” the Albertan wrote in his blog HumanLifeMatters during Canada’s previous MAID debate in 2015, what he called “the high court’s low decision.” Pickup called the guidelines in the existing law “a ruse, mere formalities to give an air of respectability to murder… by definition civilized, and enlightened societies never endorse or support killing citizens – especially those [who] have despaired of life and are vulnerable to suicide. Civilized people certainly don’t help the suicidal kill themselves.”

How Slippery is your Slope?

The massive expansion in eligibility for MAID promised by Bill C-7 suggests that “slippery slope” concerns raised during previous debates were entirely justified. What was once supposed to be – and presented to Canadians as – a limited right for a few people on the very precipice of death is now about to be widened to include nearly everyone who might wish to end their life for almost any reason. As a National Post editorial perceptively entitled “The Slippery Slope of Assisted Suicide” pointed out in 2015, “In every state or country in which the practice has been normalized, it has also, to some degree, become banalized, with eligibility criteria increasingly relaxed.”

Ardent MAID advocates continue to dismiss slippery slope arguments as irrelevant, but while euthanasia or assisted suicide policies may begin with earnest claims of the tightest procedures and restrictions, they rarely stay that way. In October 1933, for example, the New York Times carried an article lauding a proposed German euthanasia program – not long after the Nazis took control of Germany.

Proponents claimed the new law was carefully crafted for the good of the patient. “In insisting that euthanasia shall be permissible only if the accredited attending physician is backed by two experts who so advise, the Ministry [of Justice] believes a guarantee is given that no lives still valuable to the State will be wantonly destroyed,” the New York Times article, quoting an official German government memo, noted. As for the legal question of who could request euthanasia, according to the New York Times, “the Ministry merely has proposed that either the patient himself shall ‘expressly and earnestly’ ask it, or ‘in case the patient no longer is able to express his desire, his dearer relatives, acting from motives that do not contravene morals, so request.’”

We all know how that turned out. According to the United States Holocaust Memorial Museum (USHMM), Nazi Germany’s carefully worded euthanasia criteria quickly turned into “the systematic murder of institutionalized patients with disabilities in Germany” predating the Holocaust by several years. Although it is difficult to estimate this program’s total number of victims, the USHMM suggests “that at least 10,000 physically and mentally disabled German children perished as a result of the child ‘euthanasia’ program during the war years.” The toll of the innocent dead reached many millions under the Nazi government’s ever-broadening genocidal policies, including Jews, Gypsies, gays, patriots in numerous occupied countries, political prisoners, and anyone else deemed a state enemy.

A rehearsal for genocide: Despite claims of rigorous safeguards, Nazi Germany’s 1933 euthanasia policy for patients with severe disabilities became the template for later policies of mass extermination. Victims were transported to central gassing facilities in buses, such as the one shown here.

None of this is to suggest that a country that adopts euthanasia is likely to follow the Nazis into mass murder. But the slide down the slippery slope cannot be ignored. Ample evidence points to the rapid growth in assisted dying rates wherever it has been adopted. In Holland, where euthanasia was legalized in 2002, assisted suicide and euthanasia account for 4.4 percent of all deaths, according to the 2017 annual report of the Regional Euthanasia Review Committees. That is a three-fold increase since the policy began.

Writing in The Guardian, Nicola Davis notes the 2017 report “recorded concerns by Dutch psychiatrists and doctors about the use of euthanasia for people with psychiatric disorders and patients in a very advanced stage of dementia.” An earlier 2015 survey found that nearly one-third of general practitioners and a quarter of elderly care physicians were prepared to grant assisted dying for patients with advanced dementia, and even more would approve it for those with psychiatric problems.

1_Inset_Phillipsallardashton_assisted_dying_canada
An excerpt (left) from a report by the Netherlands’s Regional Euthanasia Review Committee showing the age distribution of assisted suicide and euthanasia cases in 2017. The total accounts for more than four percent of all deaths in the country, up from just over one percent when it was legalized in 2002. (Graph on right from consciencelaws.org)

In the absence of the promised five-year review of Canada’s existing MAID law, recent evidence suggests we can expect a similar trajectory to Holland. According to federal government’s First Annual Report on Medical Assistance in Dying in Canada, released in 2019, “the number of medically assisted deaths is steadily increasing,” over the legislation’s first three years. By 2019 it stood at 5,631 cases, “accounting for 2.0% of all deaths in Canada.” This is slightly higher than figures in Switzerland, where assisted suicide has been legal since 1937. So Canada’s slope may be slipperier than many others’.

“The number of cases of MAID in 2019 represents an increase of 26.1% over 2018 numbers, with all provinces experiencing a steady year over year growth in the number of cases of MAID since its introduction into law in 2016,” the federal report adds. “When all data sources are considered, the total of number of medically assisted deaths reported in Canada since the enactment of federal legislation is 13,946.”

If this growth rate continues – and the whole point of the new legislation is to make the procedure much easier to obtain – in a decade or so it is conceivable that up to one-third of all deaths in Canada could be due to MAID. Given that nearly 290,000 Canadians died from all causes in 2019, such a ratio would represent a staggering toll indeed – truly an order of magnitude higher than deaths from Covid-19 are likely ever to be.

Canadians may soon find themselves in a legal and medical environment in which human beings can be treated little different from the manner of sick or elderly pets. And with such thinking, humanity truly crosses a moral Rubicon. In barely two generations, the issue of ending the lives of the innocent has gone from being essentially objective – killing humans is plain wrong except in extraordinary circumstances – to being subjective – if we feel a life isn’t worth living or fighting for, we should end it.

To facilitate the final steps of this journey, key concepts that should have been strictly ring-fenced, notably those of intolerable pain and foreseeable death, have been defined expansively and essentially without limitation under Bill C-7. Once medical killing is sanctioned, there is no predicting where it will end. The vast differences between the existing and proposed MAID laws – not even five years apart – speak to the scale and speed of the change.

The Political Tale to Date

Bill C-7 passed in the House of Commons with a vote of 213 to 106 on December 10. The Conservatives tried to delay passage by “talking it out,” and debate during this short-lived filibuster often turned nasty. In the end most Conservative MPs opposed the bill, including leader Erin O’Toole, although 15 Tories sided with the government in what was declared a free vote. On the Liberal side, two Ontario MPs voted against the bill: Nathaniel Erskine-Smith of Toronto and Marcus Powlowski of Thunder Bay. The NDP, Bloc Quebecois and Green parties all voted solidly in favour. Interestingly, Independent MP and former Liberal Justice Minister Jody Wilson-Raybould voted against it.

In speaking against the bill, O’Toole focused largely on the artificial deadline imposed by the Trudeau government’s decision not to appeal Truchon. “Protections for Canada’s most vulnerable are more important than a court timeline to pass Medical Assistance in Dying legislation,” the Conservative leader said. “This is a hugely important decision for the well being of Canadians and their families. And we join our voices to others on Bill C-7. Indigenous leaders, doctors, people experiencing a disability – there are many Canadians who are quite concerned about this bill.” 

In the Senate, the bill may face a stiffer challenge due to the lack of party discipline, rising awareness of its implications and the grave moral challenges it raises. “The government can expect a flurry of amendments from both sides of the equation: senators who think the bill is unconstitutional because it goes too far and those who think it’s unconstitutional because it doesn’t go far enough,” the Canadian Press reported last month.

Some Senators, such as Independent Pierre Dalphond and Conservative Claude Carignan, have argued the exclusion of people with mental illness violates equality rights and have said they will seek amendments to rectify such a problem – not by narrowing access, but by widening it even more. Others supporters of MAID, however, want to push the bill through without any changes. Peter Harder, a member of the Progressive Senate Group, claims he “will not support any amendments that would alter the content of the bill or delay or block its passage,” arguing the unelected Senate has an obligation to defer to the will of the House of Commons.

On the other side of the fence, Conservative Senator Don Plett has discussed measures that would prevent health care professionals from bringing up the subject of MAID unless prompted by a patient, thus preventing its widespread use as a tool to empty out hospitals and long-term care homes on convenience arguments. Conservative Senator Denise Batters, who is a lawyer, told the Canadian Bar Association’s online magazine CBA National to expect fireworks in the Upper Chamber during debate, and that the artificial February deadline may be in peril.

don_plett_denise_batters_assisted_dying_canada_maid
“Senators on all sides have serious concerns”: Conservative Senators Denise Batters (left) and Don Plett (right) are among those promising to fight the government’s MAID legislation in the Red Chamber.

“Minister Lametti is not watching very carefully if he thinks only Conservative Senators have major problems with this legislation,” warns Batters, promising a lengthy battle. “Senators on all sides have serious and significant concerns about this bill, and we will all examine this piece of legislation with the sober and effective scrutiny it deserves. That will take as long as necessary.” Batters’ concerns focus on the dramatic widening of eligibility requirements. “The lower court Truchon decision struck down the requirement for a ‘reasonably foreseeable’ death in order to access assisted dying,” she says. “It did not call for the removal of safeguards around the practice.” All this suggests the government’s MAID bill may face a much tougher fight in the Senate that it did in the House.

Nor is Schadenberg losing hope. “We can’t,” he says. “We wouldn’t be able to fight with a clear head. What we can do for now is keep up the pressure, keep trying to convince government and voters alike that mercy killing is wrong, period, end of story.”

 

Lynne Cohen is a journalist and non-practising lawyer from Ottawa. She has four books published, including the biography Let Right Be Done: The Life and Times of Bill Simpson.

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