Wpg Free Press Op-Ed: More questions on assisted dying
The following is an op-ed written by Mary J. Shariff, a law professor at the University of Manitoba who teaches bioethics and law. It was originally published in the Winnipeg Free Press on June 8, 2016.
‘I love deadlines. I love the whooshing noise they make as they go by,” English writer Douglas Adams once said. On Monday — the deadline given to Parliament to create new legislation on assisted death — there was a pretty big whoosh. Some say this was because the government’s proposed legislation, Bill C-14, is not broad enough to comply with the Supreme Court’s Carter decision. It seems to me, however, that the missed deadline is the result of a seemingly widespread indifference to the rule of law.
On significant social policy issues — such as giving criminal immunity to someone to intentionally cause the death of another, also known as “homicide” — the appropriate law-making authority is Parliament, not the court. Consistent with other courts around the world, the Canadian Supreme Court in Carter acknowledged the law-making authority of Parliament on this controversial subject. Unlike these other courts, however, the court found the prohibition on assisted death unconstitutional and created no end of mischief in doing so, proving the old legal maxim that “hard cases make bad law.”
The court’s decision turned principally on the Criminal Code prohibition against aiding or abetting suicide. The court declared that prohibition was overly broad because there were ways to put in place safeguards that could protect vulnerable persons from being induced to commit suicide at times of weakness — the objective of aiding or abetting suicide prohibition. Yet, when it comes to the use of a lethal injection (as opposed to assisting suicide, which can be self-administered by the individual) the Carter ruling did not provide any analysis on the constitutionality of the provisions most relevant to the act of euthanasia by lethal injection. It is possible that if it had, the Criminal Code provisions in respect of lethal injection would have been upheld. Indeed, four U.S. states that have legalized physician-assisted death restrict it to obtaining prescription medication for self-administration.
Add to this the fact that the Supreme Court did not provide a definition of physician-assisted death or dying (PAD), causing much disagreement as to what termination of life acts have actually been legalized in Carter. The court declared that the prohibition of PAD for a competent, consenting adult person who has a “grievous and irremediable medical condition” and is enduring intolerable suffering is of no force or effect. However, the court properly acknowledged that the scope of its declaration responds “to the factual circumstances of the case” and that it made “no pronouncement on other situations where physician-assisted dying may be sought.”
Yet we continue to see ongoing disagreement as to the interpretation of Carter. “All-in” proponents of assisted death want to include mature minors, incompetent or unconscious persons pursuant to advance directives, and persons with mental suffering — none of which was at issue in Carter. These proponents argue that anything less than “all-in” will be found unconstitutional, either by relying on the declaration outside Carter’s factual context or by projecting possible future charter arguments. This is advocacy, not legal interpretation.
The Supreme Court stated in the Carter case that “complex regulatory regimes are better created by Parliament than by the courts.” The creation of such a regime is now in the democratically elected hands of Parliament and deference is owed. While Parliament has the option of crafting a response solely in response to Carter, any new Criminal Code amendments will depend on future evaluation of their compliance with the Charter of Rights and Freedoms.
Future evaluation may show that state-sanctioned lethal injection as a response to suffering is a mistake. Recent cases from European countries that permit euthanasia are providing evidence in that regard. In the meantime, Canada’s Parliament is suggesting a limit similar to that imposed in the four U.S. states: that criminal immunity only be granted to certain health-care practitioners who give medical aid in dying to adults whose deaths “have become reasonably foreseeable.”
As stated by the Supreme Court in Carter, “The sanctity of life is one of our most fundamental societal values.” In addition to respecting both the values of life and autonomy, the limit provides room to encourage the ongoing exploration of life-affirming responses to the wide range of circumstances that shape the individual experience of suffering. Although assisted death may now be a legal option for those who are imminently dying, it must never be promoted as the solution. Everyone deserves equal protection and respect under the law and it is incumbent on us to continue in our efforts to maximize quality of life, participation and inclusion in our society.