February 7, 2015
The Court's decision to invalidate the existing law against assisted suicide opens the door for a powerful political response from Parliament. That is potentially good because Parliament has voted six times since 1993 to reject legalization of assisted suicide or euthanasia. One of the government of Canada's arguments before the Supreme Court was that Parliament has spoken on the issue. The Court's response was that it wants Parliament to speak again. This time, It wants Parliament to answer with a new law that at least allows doctors to assist in the suicide of those suffering from "grievous and irremediable medical conditions" such that failing to help them commit suicide would deprive them of the Charter's sec. 7 rights to life, liberty and security of the person. Gerry Chipeur, who represented the Christian Legal Fellowship as an intervenor before the Court, said the language used in the judgement lends itself to the tightest possible interpretation, and the crafting of a law that makes assisted suicide available in only the most extreme cases. "It could justify a law which would apply only to people who can't use their hands," Chipeur told Cardus following Friday's judgement. "As a constitutional lawyer, based on the language of this judgement, I'd say it's possible to write a law so tight that there might be 12 people in Canada who would qualify." Chipeur said the 12 months granted by the Court to Parliament for the writing of the new law could actually be a godsend for individuals and groups who oppose assisted suicide. It gives them time to focus, mobilize, and lobby for the most restrictive language possible—and also gives them a clear benchmark for the absolute minimum allowable under the Charter. Given that Justice Minister Peter MacKay said outside the Commons that the Harper government will take its time crafting any new legislation, vital opponents of assisted suicide can start working now to come up with rigorous language of their own to recommend to MPs who will be drafting and voting on the bill, Chipeur said.
The Court took full notice of conscience rights in the decision. A major good is the decision's clear, strong language that goes a long way, on paper at least, toward protecting those who would refuse to participate in doctor-assisted suicide for reasons of conscience or religious belief. "In our view, nothing in (the decision) would compel physicians to provide assistance in dying. The (decision) simply renders the criminal prohibition invalid." Indeed, the Court noted it was asked by the Canadian Medical Association to direct Parliament to build conscience protection into any new law. It declined to give that direction, saying "what follows (the decision) is in the hands of physicians' colleges, Parliament and the provincial legislatures." Again, that gives those concerned with conscience rights full field to press at the political level for guarantees in any new legislation. The CMA itself has said it considers that providing doctor-assisted suicide is an individual decision. Only a minority of its members say they would participate in an assisted suicide. Conscience protection combined with a scarcity of practitioners and an extremely high qualifying standard to receive the "treatment" could render the number of assisted suicides in Canada negligible.
The Court has slammed the door on provinces using health care—and any provincial jurisdictional claim—as a pretext to circumvent the federal Criminal Code. The third potential good may seem like a consolation prize, and a highly technical one at that. But it has significant and immediate implications for Quebec's Bill 52, which legalized doctor-assisted death in the province a year before the Supreme Court's decision and in defiance of Canadian criminal law. During the Court hearing, Quebec argued that its share of jurisdiction over health care gives it the power to legalize assisted suicide regardless of any laws that Canada has on the federal books. It was the second time Quebec has tried to advance the same argument in a Supreme Court case under the pretext of a constitutional principle called interjurisdictional immunity. The nine justices reminded the province quite sharply that it had already been told once the claim is a non-starter. It doesn't mean Quebec's Bill 52 is automatically invalid. It does mean it may have to be re-written to conform to the stringencies of any new federal law. It also means that in terms of federal criminal law at least, Parliamentary supremacy still has some clout.
There will be some form of assisted suicide available in Canada within the next 13 months. That is obviously a bad thing if you believe that the State should be in the business of protecting human life until the natural end of life. It's bad if you believe assisted suicide to be a polysyllabic euphemism for killing. It's bad if you believe that Canada's publicly-funded health care system is no place for the deliberate killing of human beings. The composite worst of all three bad things was the logic by which nine justices of the Supreme Court of Canada accepted that a) the State must limit its protection of human life, b) that killing is acceptable with the right provisos, and c) that the health care system is a perfectly acceptable place for such killing to take place. In essence, the justices agreed that assisted suicide is legitimate because it allows the person to die later than he or she might have otherwise. People with progressive illnesses might feel such despair at what they perceive as their fate that they will take their own lives Tuesday absent the possibility of an appointment to have someone else kill them Wednesday. The logic is equivalent to saying that hangings should always take place in the evening lest the victim hangs himself in the morning and lose 12 sweet hours of life. As a bald proposition it could easily be dismissed as the fever dream of a lunatic. But it's not. It now has the imprimatur of the supremely intelligent, highly accomplished, all-but-omnipotent nine justices of Canada's highest court. No matter how many Canadians are ultimately killed through assisted suicide, something fundamental died on Friday, February 6, 2015. It was legal reasoning tempered by reality.
It's entirely possible assisted suicides will take place in the absence of any law. This is the ugly prospect that few seem to fully recognize in the aftermath of the decision. It stems from the media-fed mistake that the Supreme Court decision struck down a law against doctor-assisted suicide. It didn't. As the Court itself said, it "simply render(ed) the criminal prohibition invalid." And the existing criminal prohibition says nothing about physician assisted suicide. It says that "everyone"—and that is critical to keep in mind—who aids or abets a person to commit suicide is guilty of an indictable offence. Everyone. Doctors, yes, but also butchers, bakers, and candlestick makers. The judgement directs Parliament to find a way to carve out an exemption for doctors. In a truly bizarre lapse, it never actually makes the case for why doctors particularly should be the ones to assist in suicides. After all, killing is antithetical to medical care. And the reality is, most general practitioners in this country receive far less training in ending life than veterinarians do. So, the folks who know less about induced dying than the person who gives Fluffy the Cat the final needle are now to be put in charge of grandma's lethal dose? It does give pause. But even with proper training and specialization, why doctors? Why not husbands, wives, and public hangmen? The Court does not say. And that is truly frightening because it compounds its counter-intuitive assumption about doctors with a truly perilous assumption that Parliament will certainly pass a law and enact a regulatory regime in the next year. The experience of abortion in this country shows the assumption to be fraught with terrible disregard for history and political reality. Doctors perform abortions in this country today largely because there was a medical regime governing abortion in place prior to the Supreme Court striking down Canada's abortion law in 1988. Subsequently, we have been at an utter political impasse over any way to regulate abortion. The last attempt, under a Progressive Conservative majority government, died on a tie vote in a deeply divided Parliament. We are, as many have noted, literally lawless on abortion, and have been for 27 years. There is no existing medical regime for assisted suicide. If Parliament fails to enact a new law within a year, we won't have doctor assisted suicide. We won't have a law governing assisted suicide. If recent history is a guide, we genuinely risk never having one. Enter the butcher and the public hangman. Enter the barbarians. That makes this decision, potentially at least, one of the ugliest moments in Canadian history.
Terrible as the Supreme Court's judgement on doctor-assisted suicide will be for many overall, there are at least three good potential outcomes to it. Of course, there are also at least two things—one bad, one very ugly—that could come of it as well.