CONVIVIUM: In the immediate aftermath of the Supreme Court decision on physician-assisted suicide last February, you were both pretty shell-shocked. Have you managed to accept it yet? Have you developed a political strategy for fighting back?
MARGARET SOMERVILLE: What I'm thinking of doing is pushing hard to keep this out of medicine: it's a disaster for medicine. Something that I've said in speeches I've given is that we should designate who gives the lethal injections, and one possibility would be the justices of the Supreme Court. Of course, I say that half-jokingly, but my point is that when you recommend something, you should be willing to do it yourself.
I had a personal experience of that. I was in a big pediatric hospital, and there was a baby that was very, very ill and wasn't going to survive. We did a whole session on whether [the parents] could withdraw life support. I strongly believed they could [ethically]. At the end of the session, [the doctors] said: "Well, come with us to the nursery and you turn it off." That's a very different experience.
C: Charlie, how have you dealt with the aftermath of the decision?
CHARLES LEWIS: Right after the judgment, there were people who wanted to advise the government about how they could create a safe law in response to the Court's decision. I decided right off that I'm not, in any way, shape or form, going to help the government create a law that allows euthanasia. I simply can't do that. It's a fool's game. Getting consensus could take years, if ever. Then, whatever law is there, I firmly believe, will eventually turn into one giant slippery slope. You just can't control these laws.
For me, the response, and I've already been out there arguing this, is that we have to urge as many people as we can — and this is sometimes a very frustrating thing to do, to push people — to push the government to use the notwithstanding clause. I've been told over and over by many people, "Well, the government will never do that." Frankly, I don't care whether they do it or not. I hope they will, but I think the point is for enough people to stand up and raise their voices.
Listen to an audio excerpt from this conversation here:
When I started doing this more than a year ago, the thing that astounded me was how few priests and how few people in the pews knew about this. There seemed to be this indifference. I think the Court may have done us a favour by shocking people, but I don't know how long it's going to last.
MS: I felt exactly the same way as Charlie. And in fact, I got invited to a conference to speak about this. I said, "Well, I'm not sure I want to be talking about it because I disagree so strongly with what the Court has done." Since then, I too have spoken to quite a few people, and in contrast to the people Charlie's been speaking to, the ones I've been speaking to have been heavily involved in this debate. They've persuaded me that we can't just let this go, because what will happen is that, if the government does nothing, the provisions in the Supreme Court judgment will be the parameters for who can be euthanized and who can carry it out. They are very, very broad categories that the Court has set out.
For instance, you don't have to be terminally ill. You have to be suffering, but suffering is a purely personal, subjective judgment. If you say it's intolerable to you, then it is. There's no requirement that you have to have been offered fully adequate palliative care before you can get euthanasia. I've come to think of my involvement, in trying to get a law on this, as restricting what the Supreme Court has done. I just don't think we can take the risk of leaving it as is. My first reaction was the same as Charlie's: I argued that you don't regulate something you think is inherently wrong; you prohibit it. That's what we've always done.
CL: The most prohibitive regime on euthanasia that I've looked into, though they call it assisted suicide — I think the terms have become interchangeable — is in Oregon. A lot of the pro-euthanasia people talk about how safe euthanasia is, and then they'll refer to Oregon, which has a very restrictive system. If they were going to be honest, they would refer to Holland and Belgium. In Oregon, you need a prognosis from two doctors of six months or less to live, and you have to be able to take the drug yourself. I did a whole bunch of stories on this when I was still at the National Post.
In itself, it seems safer. I still don't like it because I've known people with cancer and a diagnosis of six months or less who ended up living for three or four years. It also means that people such as the Dying with Dignity folks, who are stuck in wheelchairs, who are quadriplegics, like MP Stephen Fletcher, would never be able to avail themselves of it. The more restrictive you make it, the more it's going to come into conflict with what the Court has asked for.
Again, I think there is good reason for the notwithstanding clause. For one thing, the government gets five years, not one. A year is ridiculous to try to reformulate this. But I think the real issue here is, with all due respect, Margo, that if there's any kind of safe law passed, give it a few years and it won't be safe anymore. We'll simply have euthanasia in this country and that will be it. I think it's better to at least try to fight this. This is not about winning. This is about standing up for a very important principle.
C: People are assuming that some sort of law is going to be passed, but as [constitutional lawyer] Gerry Chipeur made the point, the reality is if the law is not amended, there is no law.
MS: I think that interpretation is wrong. I know that there's a big debate going on in the anti-euthanasia groups about whether you and Gerry Chipeur and Tom Flanagan are right or whether, if there's no law passed, the Supreme Court ruling becomes the law. I saw it in a constitutional law opinion last weekend
where someone wrote that the Supreme Court said, "This is what the law is. This is how section 241(b) has to be interpreted now. But if you want it to be interpreted differently from what we've interpreted it to be, then you've got to pass a law." Otherwise, it would be section 241(b) as interpreted by the Supreme Court that becomes the law.
C: But in the decision, the Supreme Court explicitly said that what they have done is declare the section invalid....
MS: They say "invalid insofar..." in one place, and they say "to the extent that..." it's invalid. I was originally of your view that if they did nothing, there would be no law. But now I'm convinced that's not right.
C: If that's the case, essentially what that means is the Supreme Court has kicked the law back to Parliament, but at the same time has said: "This is what the law shall be."
MS: Yes. Either you can take what we've made it to be or you can pass a law in compliance with the Charter and that will be the law.
CL: But this is the problem. We're being asked to make bad choices. I don't think we should do that. Going along with this, I think, is the most dangerous thing we can do. One thing that has shocked me, even sickened me, is that I've noticed people who are adamantly pro-euthanasia are almost gleeful. People I thought had some intelligence sound like they've lost their minds. It's as if they can't even bring themselves to say, "Look, we know there're going to be some issues here." No, they're saying it's perfect. "It's going to be Utopia. There's no problem at all." Look at Quebec's Bill 52, Canada's first pro-euthanasia law, passed in the spring of 2014. The Globe and Mail and the National Post's editorialists wrote glowingly of it. They said: "No slippery slope." And yet, one of the people who helped draft the bill, Dr. Yves Robert of Quebec's College of Physicians, has said, "Once people get used to it, we're going to broaden it."
The Court seems to be mimicking this, a kind of unthinking march toward... I don't even know what you call it anymore. I feel like we're starting to live in an insane asylum, and you would expect at least some resistance in the Court. Mind you, it's interesting that seven of the nine judges on this court were appointed by Stephen Harper.
C: Were you surprised that the judgment was unanimous, that there was not a single dissent among the nine justices?
CL: I was, yes.
MS: Yes, I was terribly surprised. I've been working on a comparison between the trial judgment, Justice Lynn Smith's judgment in the British Columbia Supreme Court, and the Supreme Court of Canada judgment. What the Supreme Court has done is failed to disagree with [Smith] on any point. Somebody said they've hidden behind the skirts of the judge in Vancouver. They just affirmed everything she found.
C: One of the things I found quite amazing was that they quite frequently rely on the Bedford decision, and the law as it developed in Bedford, to adjudicate an appeal that was heard before Bedford became law. Bedford did not exist when the B.C. Supreme Court judgment was rendered. How does that happen?
MS: Someone said to me when I was complaining: "Look, you've got to understand the Supreme Court can do whatever it likes."
C: Isn't that a frightening statement?
MS: Well, yes, it is.
CL: But maybe none of this is surprising if you pull back and look at society as a whole. When Quebec passed Bill 52 [an act respecting end-of-life care], it effectively said that it was not worried about the Criminal Code because this is a health-care issue, meaning that this has nothing to do with the Criminal Code. So, in a sense, my understanding of Quebec was whatever the Court did, they were going to go their merry way. The government should have, at least, at that point said, "Well, look, you've gone against the Criminal Code." But they never did. I kept thinking, where is the Prime Minister? Where is the federal Justice Minister, even our pro-life MPs? Somebody should have noticed and said, "Look, you're jumping the gun."
MS: No, but you see, Charlie, the federal government won't say anything about Quebec until it gets to the stage where they get it into court, because otherwise it would be seen as meddling in provincial jurisdiction. That's death here. What the Quebec government was arguing, and what they're now in court arguing, is that euthanasia or physician-assisted suicide, words they never use — they speak of MAD, medically assisted dying — is a medical treatment and, therefore, is within the provincial jurisdiction over health and social services. And to the extent that they legislate on that, that is valid legislation. Now the Supreme Court did consider this question of federal-provincial jurisdiction.
C: That's one of the positive things in the judgment. They basically told Quebec, yes, there is shared jurisdiction over health, but it has to be in conformity with the federal law.
MS: You're right, if you're violating the Criminal Code, you're in trouble with the federal government. But, if you look at the Carter case, the Supreme Court found that physician-assisted dying is medical treatment. That backs up what Quebec has done.
CL: Part of what's missing here is people leading. All the prime minister is doing, it seems to me, is waiting to see which way the wind blows.
C: What do you think Stephen Harper's options are? Margo, what should his government do? What can it do?
MS: I like the idea of setting up a Royal Commission and then justifying a use of the notwithstanding clause to allow the commission to take place and then to advise Parliament. I think the way to go is to try to get more time, and to make it clear that Parliament's going to deal with this and it can't just fold up....
C: Margo, do you have a sense that they will simply leave the law as it stands and allow the carve out, or exemption, that the Supreme Court has declared without actually changing the law?
MS: If you took the abortion situation as a precedent, that's exactly what they'd do, isn't it? Because that's exactly what happened with abortion.
C: Well, the Mulroney government did try to pass legislation restricting abortion but...
MS: ... but they weren't successful. I'm like Charlie. I'm appalled that we've gone over that line that we do not intentionally kill each other, that we must not intentionally kill each other, and I'm appalled that it's been put into medicine. I suggested in the op-ed I wrote for the [National] Post that we should have a list of doctors who definitely will not do this, because I don't want to go to a doctor who's willing to give me a lethal injection. I think we should also allow institutions to declare themselves physician-assisted-dying-free zones. If you go to that hospital, you won't be given a lethal injection. Then I think we should let Canadians choose.
CL: In reading about what happened in Oregon, and reading about what happened in Holland — I'm not sure about Belgium — over time, more doctors got used to it and were willing to do it. In fact, in Holland, more doctors were getting used to the idea of killing patients who suffered from depression not just physical ailments
MS: Most recently, there's been concern manifested in the Netherlands that more and more doctors are unwilling to engage in euthanasia. The Dutch Medical Society has come out and said part of the reason is that doctors are being psychologically damaged by participating in it. You know, the Dutch government has set up these mobile euthanasia units because it wants people to be able to get euthanasia and the doctors don't want to do it. So, that goes both ways.
CL: But at the same time, there've been more people with psychiatric problems being euthanized than ever before. I think that there's been a real vacuum of leadership on this in Canada. The so-called pro-life MPs, what have they done? You had very few people who came out after the judgment — Stockwell Day and Maurice Vellacott, for example. But now they're gone. I've written to them myself and asked, "Would you take part in anything?" No answer. Catholics were probably one of the best groups to start a foot campaign or letter-writing campaign because they're already told at their church that this is wrong, but we have no sermons, we had no homilies on this... the Church is so far out of this right now. Everybody I know who's been involved with a church and cares about it is completely confused. This is a fact. There was a ready-made audience and it got missed.
C: Margo? Thoughts?
MS: Well, I know what happened here in Quebec. I think it generalized from the Conference of Bishops. They were told by people who were very active in trying to prevent the legalization of euthanasia: "Please keep out of it, because if it gets labelled as a Catholic issue, then everybody will say, 'Well, we don't need to worry about that because that's just a religious view.'" The bishops intentionally kept out. It wasn't that they were not interested or caring or worried.
CL: But these are smart people, and once somebody tells you, "You better make sure that nobody knows that you're a Catholic," you're hiding yourself away. This is another part of this problem. People elsewhere in the world are being murdered for being Christian. And here, people are worried about getting in trouble. The fact of the matter is, there is a religious line here. But what's wrong with that?
MS: Well, because it's better to win. It's a matter of what's the best political way to go about winning this.
C: But how did we get to this cultural moment when, whatever the bishops do or don't do, nine justices of the Supreme Court and a large percentage of the Canadian population now believe that the deliberate killing of another human being is quite acceptable. Margo, how did we get here?
MS: It's the rise of intense individualism. What you've got, at bottom, in the euthanasia debate is a clash of two values. [One is] the right to autonomy and self-determination as the individual controls what happens to them in their lives, including whether or not they [live]. This compares with upholding the value of respect for life. The Supreme Court looked at this and came down on the side of autonomy: when those two values are in conflict, then they've given priority to the right to autonomy.
My argument, and I think the argument of everybody who's anti-euthanasia is, yes, we accept that those two values are in conflict. But we give priority to the necessity of upholding respect for life. We can do that while giving people good palliative care, doing everything possible to relieve pain and suffering. And even though the person does want euthanasia, we say, regretfully, that's one thing we can't do for you because we also have to worry about the values that inform our society, and one of those values is respect for life.
I don't use the term sanctity of life. I think that's a mistake because that gets mixed up in religion. Actually, in the Carter case, the Supreme Court does use the term sanctity of life.
C: It did in Rodriguez as well, right?
MS: Yes, it did in Rodriguez, too.
CL: I agree with everything Margo is saying. I would add that the increase in secularism or the moving away from religion is a culture of vanity. If you're not perfect and you're not slamming volleyball shots while drinking Pepsi in these beautiful hard bodies... the image we have of ourselves — though very few people live up to it — is this kind of perfection. Illness gets in the way. You're really not much fun anymore.
I have a dog in this fight from the fact that the last three and a half years for me have been a really rough ride. I've had this terrible spinal condition, which actually seems to be getting worse now. I've been on morphine. And it has been bad. Trust me. Taking 200 milligrams of morphine a day, I was just a total mess. I lost my job. What I realized, though, other than being sick, my wife works, we had no debt, we had our house paid off, no kids to support. We were almost in the most perfect financial position for me to be ill. Plus, I had great insurance.
In a sense, all I had to do was get well. I had no other worries. Then I kept thinking, because I am a Catholic and this is a very much a part of who I am, can you imagine this happening when you're 30 and have a young family and you don't know how you're going to pay the rent; or you're alone and your friends stop coming over, which is something that happens. I was quite surprised to find out that it really does happen. What would you do then? Of course you're going to be depressed.
If we go the way of the Court, who is going to be vulnerable to this? I would say that this is where the selfish individualistic thing comes in. I've had talks with people [who] don't give a crap what happens. They say, "As long as I got mine, I got mine. This guy is not my responsibility." I feel totally different.
MS: I think we want to be very careful to make a distinction between a secular society and secularism. Secularism wants to eliminate religion from society. A secular society respects religion, but it isn't based on religion. I'm very wary.
CL: I'm simply trying to say that I had a first-hand taste of what it would be like if you didn't have the means. These days, few people are getting any kind of benefits. Journalism is completely without benefits now, for the most part. There are going to be more people who are going to be in more anguish when they get sick because they're not going to have health insurance. That is going to force people to consider whether it is worth living. I'm just talking about my own experience of having suffered, suffering terrible pain, and what might happen to me in a different circumstance.
C: Margo, would you agree with the idea that it's, at least in part, a loss of a religious sense, that is, of a sense that there's existence-plus. That we're not just a stalwart collection of transformed groceries, as the old saying goes.