Andrew Coyne
The Supreme Court crosses the Rubicon, covering its eyes.
A permissive regime with properly designed and administered safeguards [is] capable of protecting vulnerable people from abuse and error. While there are risks, to be sure, a carefully designed and managed system is capable of adequately addressing them. — From the ruling The Court airily dismisses concerns that euthanasia will be expanded or abused … as ‘anecdotal’
One measure of the eerie complacency of the Supreme Court’s ruling in Carter v. Canada (Attorney General) — the euthanasia case — is that it spends more time on the question of where to award the costs of the case than it does on the implications of its decision. Six pages on costs; three pages on where the hell is this all leading?
In one sense, the decision is narrowly drawn. The Court confined itself to deciding whether the present absolute ban on assisted suicide — the norm in all but a handful of countries, as it has been through most of our history — was “overbroad.” In seeking to protect vulnerable Canadians from abuse, it ruled, the law also caught in its net competent adults who had freely chosen to end their life — or rather, who had invited someone else to end it for them, a hitherto crucial distinction the Court does not trouble itself with. As such, the law encroached upon the right to “life [sic], liberty and security of the person” more than could be justified under the Charter’s “reasonable limits” clause.
Having found a way to throw out the law — did anyone doubt that it would? — the Court then refused to rule on a number of other questions put before it: whether the ban deprived the disabled of their right to “equal treatment” under the Charter, for example, or whether the harm it caused was “grossly disproportionate” to the good it did. That may seem like magisterial restraint. In fact it is a kind of myopia. For all of these questions and more are likely to be back in front of the court before long, and all of the fine distinctions on which the Court insists a new law might be constructed will then surely dissolve.
Indeed, the Court itself discards at least two of these even in the course of the ruling — again, without even pausing to acknowledge it. When most people think of assisted suicide or euthanasia (the distinction lies in whether the patient initiates the process or the doctor) they have in mind not only a competent adult, capable of giving consent, but someone suffering unbearable physical pain and in the last stages of a terminal disease, for whom suicide is no more than a way to hasten an end that is already both inevitable and near.
But that is not what the Court has in mind. First, it is clear from the ruling that the “enduring and intolerable suffering” that would confer the right to have someone kill you (with your consent, of course) is not limited to physical pain, but also psychological pain — which, besides being a murkier concept by far, raises the question of how competent the subject really is. Nor is suffering defined further: it is enough that it is intolerable “to the individual.”
Second, nothing in the words “grie vous and irremediable medical condition,” the court’s other requirement for the exercise of this right, suggests that death is near, or even likely. It is enough that the condition be incurable; it need not be terminal.
What would there be, then, to prevent a person suffering from chronic depression, but unable for whatever reason — cowardice, perhaps — to take his own life, to ask someone to do it for him? Nothing that I can see. Are we to say that a person suffering from the psychological pain of depression — intolerably, as they see it — cannot “clearly consent” to someone killing them? On what grounds?
Indeed, on what grounds could any limit be placed on this right? Once we have embraced the idea of suicide, not as a tragedy we should seek to prevent, but a right we are obliged to uphold; once the taking of life has been converted from a crime into a service — “physician-assisted death” — to be performed at public expense; once we have crossed these sorts of philosophical and legal divides, how is it to be imagined that we could stop there?
The Court airily dismisses concerns that euthanasia will be expanded or abused, as it has been in those few jurisdictions where it has been legalized, as “anecdotal.” Very well. Perhaps the Court is right, that the “medico-legal culture” of Belgium, where assisted suicide is now provided to children and prisoners on demand, is different than Canada’s.
But it is not in the administration of the law that I fear we will see the “slippery slope” at work so much as it is in its interpretation. Perhaps the Court’s confidence that “safeguards” can be devised that will prevent the spread of euthanasia beyond the competently adult and the clearly consenting is well placed. But there can be no safeguard against the Court’s own future decisions.
Some day, someone is going to bring a case before the Court arguing that children with an incurable disease and in “intolerable” pain should also have the right to assisted suicide, perhaps with their parents’ consent. Is the Court really going to condemn them to endure years of excruciating pain until they are of age? Likewise, is it really prepared to leave the mentally incompetent to suffer unbearably, when with the signature of a legal guardian they could be released? Or if personal autonomy is all, why should a “grievous and irremediable medical condition” be required? Isn’t it enough that you want to be dead, but need someone to help?
At that point the Court will be caught, helpless before its own logic. And by then, so will we.