A terminal illness is any disease that curtails life even for a day. --Jack Kevorkian, National Press Club in 1992 Introduction
The Carter decision of the Supreme Court of Canada appears to have been generally well received by most Canadians. Yet the decision and new implementing legislation are fraught with quandaries at several levels. There are many who say this sudden and drastic change to such important social policy affecting life and death--basically a court overruling very longstanding parliamentary will--should have received more public consultation and democratic scrutiny. This is not a policy that can be easily reversed or moderated.
Apart from the fact that this critical social policy comes about by a few judges striking a crime out of the Criminal Code, Canadians still are sharply divided on the important details. The recent tug-of-war in the House of Commons and Senate over Bill C-14 demonstrates that the line-drawing about who should be able to legally choose this option and under what circumstances falls far short of a national, multicultural consensus. Ethnic and religious views and philosophies of life and death vary significantly from group to group. Minority perspectives on assisted suicide were largely unsolicited.
Some judicial principles also seem to have been contested to get to this result. For example, the Court had to overlook or amend its own doctrine of mootness. Ms. Carter, who brought the case, had died before the decision was made. Accordingly, any decision had no direct impact on her and the question she raised did not need to be answered. For the Court to follow through in any event raised the spectre of the Court legislating on the issue. The Court also had to confront the binding effect of its own 1993 precedent of Rodriguez [CanLII - 1993 CanLII 75 (SCC)] which stood in the way of permitting assisted suicide.
Nor can it be said that assisted suicide is so widely approved in other countries that there was some form of need to "catch up" with modern western values and practices. Only six other countries have legalized it. These are: the United States (Washington, Oregon, Montana and Vermont), Colombia, Luxembourg, Belgium, the Netherlands, and Switzerland.
Even the nomenclature that attaches to this law reform is politically contentious. The reform takes place in the context of criminal law. The Criminal Code provision that the Court struck out has its 19th century roots in concepts of murder and homicide. A euphemism would be euthanasia. The impugned crime, until it was struck out, was "counselling, aiding or abetting ... suicide". The Court and other proponents of the Carter outcome avoid the unpalatable criminal language of murder, homicide and suicide. The federal legislation is subtitled "medical assistance in dying." Proponents of the phenomenon are likely to focus on "quality of life" and "dying with dignity" themes. Oregon immediately referred to the suicide option as "comfort care." Words have power and content.
This article, however, takes a different...