When, in 2015, the Supreme Court of Canada struck down the section of the Criminal Code forbidding assisting suicide, it overturned not only the law but its own previous ruling, in the celebrated 1993 case of Sue Rodriguez.
Courts are usually loath to do this: Under the legal doctrine of stare decisis, they are generally bound to follow precedent. However, the court found “the matrix of social and legislative facts” surrounding the 2015 case, known as Carter v. Canada, had changed so dramatically since the Rodriguez case as to justify it in taking the opposite approach.
For whereas the court had been persuaded, in Rodriguez, that an absolute prohibition on the practice was necessary to prevent a more general erosion of the taboo against taking human life, by 2015 it felt confident in setting aside this concern. The potential threat to vulnerable people, whether through error, coercion or systemic prejudice, could be averted by “a carefully designed and monitored system of safeguards.”
Evidence of widespread evasion of such safeguards in Belgium and the Netherlands, where assisted suicide had previously been legalized, was dismissed as “anecdotal,” while the widening of its application in those countries, from the consenting adults originally envisaged, to children and the mentally ill, was waved away as the product of a different “medico-legal culture.” In essence, the court said, it can’t happen here.
This was not just an incidental point. This was central to the court’s reasoning, the thing that allowed it to ignore the precedent set in Rodriguez. Legalizing assisted suicide, relaxing the prohibition in place for centuries in virtually all Western countries, need not open the floodgates, as feared. It could be limited to consenting adults, of sound mind, in the last agonizing stages of a terminal illness – the sorts of people who had come before the court in Carter and Rodriguez, the sorts of cases that had moved the public to support their cause.
Yet here we are, in 2020, considering whether to legalize assisted suicide for non-terminal cases, for the mentally ill, even for children – sorry, “mature minors.” The government has launched a two-week public consultation exercise on these and other issues, with legislation likely to follow later in the year. The slope has in fact proved every bit as slippery as the critics had warned.
Indeed, the court itself began the process. All of the evidence before it had concerned those in unbearable physical pain – and not only pain but incapacity, such as to require the assistance of another to end their lives. The court noted the “cruel choice” faced by those who, while still physically capable of killing themselves at present, might not be so in future, as the disease progressed. Assisted suicide was thus presented as, oddly, a way of prolonging life, rather than shortening it, allowing patients to have others do later what they would otherwise be forced to do themselves, earlier.
And yet in its decision, the court opened the doors to assisted suicide, not merely in cases of physical but also psychological pain. There was no necessity that the illness be terminal, or incapacitating: only that it be a “grievous and irremediable medical condition” that imposed suffering that was “intolerable to the individual.”
Hardly had the decision been issued, moreover, when the clamour went up to further loosen the law. Federal legislation, drafted in response, that included a requirement that the patient’s “natural death has become reasonably foreseeable,” was assailed as unconstitutional, as a Quebec court eventually ruled – the ostensible reason for the current exercise.
But it was always clear that this was just the start: Even as it was presenting the legislation, the Trudeau government signalled its openness to further liberalization. Which is why the coming review will embrace much more than whether the right to assisted suicide should be restricted to the terminally ill.
It could not be otherwise. Once you have accepted the logic of legalization – that death is no longer to be viewed as a terrible tragedy, something we should wish if possible to prevent, but as a blessing, a release from suffering we should wish to assist – all else follows.
The notion underlying the court’s ruling, that we could erase or elide certain important moral distinctions – between killing yourself, say, and enlisting others to kill you, or between death by natural causes and death by human intervention – while insisting on a host of others, appealing to the unlimited personal autonomy to decide one’s fate on the one hand while hedging it about with all manner of limits on the other, was always bound to collapse on itself.
Was it really to be imagined that we would extend the right to free themselves, or rather have others free them, from intolerable suffering to adults, but would condemn children to years of unendurable pain? Did we honestly think the courts would continue to restrict assisted suicide to those capable of “consenting” to it – as if mere mental incapacity should be any more of a barrier to those in need of its relief than physical?
We may not have fully realized it at the time, but what we were entertaining when we took our first steps down this road was not the legalization of a previously prohibited practice, but the normalization of it. Which is how assisted suicide passed, almost instantaneously, from criminal, to legal, to mandatory – with doctors and hospitals ordered to provide the “service,” or refer patients to others who will, and at public expense.
Which raises a peculiar irony. If the fundamental premise underlying the court’s ruling in Carter, that the fears to which it had deferred in Rodriguez had proved unfounded, has itself proved unfounded; if the limited, exceptional cases it foresaw have already become widespread and unexceptional (more than 4,000 cases of assisted suicide, 1.1 per cent of all deaths, were reported across Canada in 2018, up from roughly 2,500 the previous year), with whatever limits remain likely to be removed; has the “matrix of social and legislative facts” not changed again? Is there not ample cause for the court to revisit Carter, as earlier it revisited Rodriguez?
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Andrew Coyne