Margaret Somerville is founding director of the Centre for Medicine, Ethics and Law at McGill University.
A major postelection issue is what to do about the Supreme Court of Canada's judgment in the Carter case last February, which struck down the Criminal Code's prohibition of assisted suicide to allow physician-assisted suicide for certain people in certain circumstances. This ruling represents a seismic shift in foundational Canadian values of much greater import than what we decide about the niqab.
A central question in legalizing physician-assisted suicide is where the balance between respecting individual rights to autonomy and protection of the "common good" (protection of others and society, including its important values) should be struck. In this case, there was almost no such balancing.
Rather, both the trial court and the Supreme Court focused almost exclusively on the rights of individual persons, so that the factual findings and legal reasoning were intensely individualistically based.
There was heavy emphasis on the suffering of people who had "bad deaths" and both courts ruled that the potential risks and harm to people of legalizing physician-assisted dying – that is, what is required to protect them and the common good – was a "theoretical or speculative fear" that could not outweigh the individual's right to autonomy with respect to deciding what should happen to his or her own body and life.
Both courts adopted a narrow definition of Parliament's purpose in prohibiting assisted suicide (namely, that it was to protect a vulnerable person in moments of weakness from acting on suicidal ideation) and concluded that an absolute prohibition was not needed to achieve this. Indeed, the courts accepted the evidence of plaintiff Gloria Taylor, who suffered from Lou Gehrig's disease, that she did not need this protection as showing that she and people like her did not – that is, they were "not vulnerable."
Consequently, the absolute prohibition of physician-assisted suicide, which the Supreme Court ruled breached all Section 7 Charter rights to "life, liberty and protection of the person," was overbroad in relation to implementing Parliament's purpose, and so was not "in accordance with the principles of fundamental justice," and therefore unconstitutional.
But was the court correct in its assessment of vulnerability? Prof. Henk ten Have, a physician-ethicist at Duquesne University in Pittsburgh, recently published a paper proposing that vulnerability is an innate human characteristic that we all experience throughout our lives, because it "comes from the social dimension of human existence." In short, we are not free-floating autonomous atoms.
Vulnerability is linked to dependence on others. We are all interdependent, which means we are all vulnerable. This is not necessarily bad, as we might at first assume when we hear the word "vulnerable."
For example, researchers in psychology have found that recognition of such dependence is a necessary condition for experiencing gratitude. We recognize that we need the other person and are grateful to him or her for fulfilling our need, which can be distinguished from being grateful for whatever it is that they have given to us.
So, has the emphasis on individual autonomy and its priority over other values caused us to lose our capacity for gratitude? Moreover, has this loss created a culture of individual entitlement? Has it resulted in converting privileges into rights? Has it meant a loss of bonding to others, the glue required for the social cohesion that enables us to form a society?
I suggest that the Carter judgment reflects such characteristics.
The Supreme Court saw the antidote to suffering as recognizing individuals' right to autonomy and its use to consent to the infliction of death. An alternative is a communal response of providing fully adequate palliative care, which affirms our bonds with those who are in need and are especially vulnerable.
In balancing autonomy with conflicting values, the Supreme Court failed to consider what is necessary to protect the "common good," to protect all of us as vulnerable people by upholding "respect for life" (a preferable term to "sanctity of life") in society as a whole.
I suggest it requires, as it always has until now, the prohibition of intentionally killing an innocent human being or helping them to kill themselves.