On Friday my Facebook status linked to the Supreme Court of Canada’s decision in Carter v Canada (Attorney General) with the following comment: “SCC rejects the prohibition on doctor-assisted death in specific cases – unanimously, no less. This is an important moment in our legal history.”
The choice in words was deliberate, in that I avoided language which would imply I thought the decision was either good or bad. It had only just been published and I needed time to read it, and time to think. In principle I felt I would agree, but I needed to know first what I might be agreeing to. Yet while that was happening I couldn’t just let it pass and give no indication that I had noticed it. It was, as I had commented, important.
For those unaware of Carter v Canada, it concerns Canada’s blanket prohibition on physician-assisted suicide and asks whether such prohibition violates a person’s right to life, liberty and security of the person under s.7 of the Charter. This case specifically concerned the rights of persons with “a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” This is not a new debate. In the early 90s the Court found our blanket prohibition constitutional. On Friday they reversed that position, citing changed legal and social conditions, and gave Parliament one year to draft new legislation before the nullification of the current law takes effect.
Reading the decision has given me a clearer understanding what the Court was about, but has not reduced the internal tension I feel in the face of it. It is possible to agree that one should seek a balance between the important goal of protecting vulnerable persons from pressure to end their lives, and allowing fully competent but suffering persons access to this choice. It is equally possible to believe that the availability of a choice will prevent desperate turns to more violent methods of suicide out of fear of future degradation and pain.
But I worry about the mechanism by which we seek that balance.
The Court raises the repeated discussion of the decriminalization of physician-assisted suicide in Parliament over the past two decades. They point out the emergence of multiple jurisdictions permitting physician-assisted suicide since they considered the issue in Rodriguez. They point out the abundant evidence from those jurisdictions that proper regulation and safeguards are entirely possible. I can accept their conclusion that it is possible to mitigate risks and that a well-regulated system could provide a valuable social good that we currently lack. What I doubt is the wisdom of forcing such an important change with a one-year deadline.
The paradox to me is this: I do not believe our current government would have voluntarily changed the law nor can I be certain that the change would have occurred in my lifetime without the ruling. Yet now that the ruling has come I wonder if the suddenness of it introduces new risks where the quality of the law is concerned. No legislative regime can negate all of the shades of gray and risks in this area. But would we have a better chance of minimizing them if we went about it more slowly? Or would the cost of moving slowly outweigh the benefit of pushing it to happen sooner?
I am certain my view on this case will evolve – and hopefully become more settled – as the longer-term effects play out. In the meantime, I will say this. Despite my questions surrounding the mechanism of movement, I tend to think we have moved in the right direction. I am especially supportive of the fact that the ruling was unanimous. With such an important issue at stake, the presence of multiple concurring or dissenting opinions would only have further clouded the issue and complicated the task of drafting balanced and effective legislation.
For now I will continue to read and think on the issue. No doubt I will have further thoughts when new laws are drafted. Until then, those of you that are also reading and thinking on this are welcome to weigh in with your take on the issue.