Beyond the question of ethics

Seven months ago, Dr. Donald Low, known to the public primarily as a calming authority figure during the panic of the 2003 SARS outbreak in Toronto, was diagnosed with a brainstem tumour. He described the physical pain and loss of autonomy as intolerable. Five days before his passing, the noted microbiologist and medical doctor released an extended video clip calling for the legalization of physician-assisted suicide (PAS) in Canada. The video quickly went viral resulting in renewed public debate over the competing ethics, politics, and legal interpretations of PAS.

Typically, when assisted-suicide enters the public narrative, ethical issues are placed at the forefront while legal dimensions of this issue are primarily used as a backdrop. I would like to see public discussions that are in favour of examining the legal principles being invoked. Just to be clear, I’m aware that legal principles and ethics aren’t mutually exclusive. However, one can be prioritized more than the other. Ethical arguments are more accessible to the public than arcane, Aristotelian legal reasoning and dry judicial exposition.

 

A brief legal history

Since the removal of suicide from the Criminal Code of Canada in 1972, the permissibility of PAS has been frequently debated in Parliament as well as in courts at varying levels. Its illegality is meant, in principle, to prevent the coercion and manipulation of those physically or mentally incapable of making a decision. However, the constitutional legitimacy of the act that restricts assisted-suicide was brought to the Supreme Court of Canada in 1993 in the Sue Rodriguez case, Rodriguez v. British Columbia (Attorney General). The Court, in a notable 5-4 split, ruled that criminal prohibition of assisted-suicide did not violate the Charter of Rights and Freedoms.

Former Chief Justice John Sopinka acknowledged deprivation of certain Charter Rights, particularly the right to individual security and the right to liberty. According to Parliament’s Library, the majority ruled that “[such] deprivation was justified because it accorded with principles of fundamental justice,” and that, “concerns about abuse and the difficulty in establishing safeguards to prevent abuse make it necessary to prohibit assisted suicide.”

Dissenting opinions of the Court concluded that denying Rodriguez’s request would be contrary to the principles of justice, particularly security of the person. Current Chief Justice of Canada Beverly McLachlin proposed that criminal prohibition based on the fear that others might suffer abuse is unjustified. She further remarked that the criminal prohibition of assisted suicide was not an accurate reflection of society’s fundamental values.

In 2012, B.C.’s Honourable Madam Justice Lynn Smith determined that the federal prohibition of PAS amounts to discrimination as with the case of Lee Carter, in Carter v. Canada (Attorney General). She granted Gloria Taylor (who suffered from amyotrophic lateral sclerosis, or Lou Gehrig’s disease) constitutional exemption from the provision. In 2013, Honourable Robert Nicholas, minister of justice and attorney general of Canada, announced the Federal Government’s initiative to have this decision appealed.

 

‘Turning and turning in the widening gyre …’ – W.B. Yeats

I’m hesitant to adopt a bold normative position on PAS itself. I do, however, believe that past legal and judicial arguments upholding the illegality PAS don’t hold up to criticism, particularly when differing views are fully considered. Those capable of ending their lives unassisted may do so with exemption; professionals offering or soliciting help to those who prefer or require assistance risk facing criminal charges and breach of professional ethics. Professor Maneesha Deckha, an associate professor of the University of Victoria’s Faculty of Law, observes, “Taking one’s life is no longer illegal in Canada, but having assistance with that is. The Criminal Code may be said to be focusing on who is involved rather than what is the end result.” Both federal and provincial judges have expressed concerns over the inherent discrimination.

Moreover, I find judicial appeals to “sanctity” a troubling basis for decisions—least of all because internal concepts of “sacred” and “holy” in a pluralistic society seem fleeting and relative. Clearly society has implicitly agreed on a secular working definition for the “value of life.” Apparently this definition excludes dignity. Professor Deckha points out that “Dignity is a value that undergirds Charter rights but is not a standalone right on its own.” Perhaps it’s naive to assume that the fundamental social values worth protecting would include the dignity and autonomy of informed and consenting adults. Though my conjecture may be naive and presumptuous, I contend that the conclusions drawn by former Justice Sopinka were overly cautious and speculative. No appreciable evidence demonstrating risk of increased abuse due to legalization has ever materialized. Moreover, judicial support for the provision seems as sweeping and imprecise as the provision itself. The legal and practical difficulties surrounding PAS—regulation for instance—strike me as distorted. Establishing parameters for what is and isn’t acceptable is challenging but not insurmountable.

 

‘And soonest our best men with thee do go.’ – John Donne

Obviously Dr. Low intended to provoke debate around the legalization of PAS. Amid all the sound and the fury, it was inevitable that his humility in the face of certain death would be appropriated as much as it was championed. Interpretations of PAS in tandem with the Criminal Code of Canada and the Charter of Rights and Freedoms have been a confused and vicious game of call-and-response, as judges and politicians try to balance the abstract interests of society with the needs of the terminally ill.

It was likely with great personal relief that Dr. Low peacefully passed away in his wife’s arms on Sept. 18.

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