End-of-life decision making is once again in the national spotlight. Psychotherapist Gillian Bennett passed, leaving an eloquent argument for choice; Justice Minister Peter MacKay labelled the issue “emotional and divisive” and stayed the course; and Conservative MP Steven Fletcher called for a Parliamentary debate. As the national discussion evolves, it will be helpful to appreciate the broader legal context in which it sits.
Right now, federal law is clear: No doctor-assisted death, period. However, due to several structural features deliberately built into the Constitution and legal process, what appears to be a rigid ban is actually far more nuanced. And this built-in nuance is necessary to manage the inevitable conflict between static laws, evolving social values, and the fluid moral messiness of everyday life. What follows are five central features of our legal landscape that can informally turn a law whose words clearly say “never” into a law whose practical impact is “sometimes.”
1. Enforcement Priority – Parliament in Ottawa gives the same criminal law to the entire country. But local police set local enforcement priorities. For example, every police service focuses heavily on sexual assaults and hold-ups. But what police service has a palliative care squad? How many homicide cops troll hospital wards to nab doctors caring for the dying? Sometimes, when the moral foundation of a law is debateable, a little tact in deploying limited police resources – a little looking the other way – is not such a bad thing.
2. Enforcement Discretion – This is different from enforcement priority, which sets enforcement policy in general terms. Enforcement discretion is something every police officer possesses to use in individual cases, and is supposed to use for the public good. We all know of the kindly copper letting someone go without a ticket because they were speeding for some well-meaning reason. Enforcement discretion allows thoughtful circumstantial ethics to soften blunt laws.
3. Division of Powers – The federal government alone legislates every word in our Criminal Code. But who applies the Criminal Code in court? Crown Attorneys deployed by the provinces. Our Constitution deliberately divides criminal law responsibilities in this way to balance nationwide uniformity with local sensitivity. This division of powers gives regional diversity on justice and morality issues enough space to breathe, but not so much space as to pull the country apart. For example, now that Quebec has assisted-death legislation, you can bet Quebec Crown Attorneys will factor it into their decision making.
4. “The Public Interest” - Every Crown Attorney knows their highest duty is to ensure every prosecution is in the public interest. So every day across the country, charges for which ample evidence exists are withdrawn by Crown Attorneys, or never laid at all, because they are not in the public interest. In more than 25 years working with this “public interest” standard, I know it to be a valuable tool, which, if used wisely, can turn unfeeling laws into sensitive expressions of prevailing community values. And yes, as a prosecutor I have wrestled with applying the public interest standard to physician assisted death.
5. Jury secrecy - The enduring value of juries is direct democracy in action. Put 12 ordinary folks in a room with mediocre sandwiches, promise them secrecy so they can decide a case however they like, and ask only that they decide unanimously. Historians assert that juries in Victorian England acquitted people charged with petty crimes like stealing bread, not because those charged were innocent, but because the penalty was death, and that was wrong. Juries inject local values, wisdom and common sense when applying bluntly worded laws.
This brief tour of our criminal justice system shows that from beginning to end, there are multiple ways to soften the harsh impact of inflexible laws. These escape routes are not available as of right: No one can demand to be exempted from a law just because they don’t like it. But these escape routes are well entrenched and remain crucial, because real life problems with all their moral diversity and competing sympathies cannot all be solved with pre-packaged legislation issued by even the most conscientious parliamentarians. Sometimes it is better to answer tough questions with “it depends”; sometimes better to let sleeping dogs lie. But only sometimes. That is why we need both clear laws and discretionary latitude in how they are applied.
Despite the current total ban on physician assisted death, there are no outrageous prosecutions of good-hearted palliative care doctors. So maybe the escape routes described above are successfully softening the harshness of the total ban. Maybe compassionate, private end-of-life decisions are remaining private. In other words, maybe we already have an informal but workable compromise on a divisive issue. Or maybe the total ban is preventing good-hearted palliative care docs from doing what is sometimes right, and the law needs to change. Whatever the best approach to this difficult issue might be, the debate is better served if everyone understands how our criminal justice system is already well built to handle shades of grey.