Thursday, February 19, 2015

Without true north, the Supreme Court of Canada’s compass is pointless

By Don Hutchinson

We have a compass on the dashboard of our Jeep. It’s a good old-fashioned oil filled ball compass. I stuck it there shortly after we moved from Toronto to Ottawa because my “personal positioning system” occasionally got confused with the transition from decades in a water-to-the-south city to driving in a water-to-the-north city.

We have since acquired a GPS unit; but the compass stays. Why? It’s my experience that when the compass and the GPS are in disagreement, the compass is right. GPS units are notorious for being more disoriented than even I can be. But a compass is continuously reliable once it is fixed to true north. Without true north, the compass is pointless.

[February 6’s] decision of the Supreme Court of Canada in the Carter assisted suicide case gives every indication that the Court is practising orienteering based on a “personal autonomy positioning system.” Abandoning constitutional true north, the role of its decision as a legal compass is unpredictable. The guidance provided in this case resembles dire true stories of GPS units gone awry.

The Court mapped out where it was headed in the opening paragraph, stating the current law is “cruel.” This was the precursor to abandoning what was described in the Court’s 1993 decision in Rodriguez, a case dealing with the same issue, as an underlying and animating “Charter value.” The 1993 Court defined the “sanctity of life” in the secular sense “to mean that human life is seen to have a deep intrinsic value of its own.” This definition was essential to understanding the Charter and the application of Charter rights, particularly the section 7 rights to “life, liberty and security of the person.” As the 1993 Court noted, Charter rights apply to all “members of a society based upon respect for the intrinsic value of human life and inherent dignity of every human being.”
The 1993 Court identified “sanctity of life” as constitutional true north for interpreting the Canadian Charter of Rights and Freedoms.

This foundational principle was the ground on which one person was not permitted to kill another person, and no person could consent to being killed. Even before the Charter, it was foundational to eliminating the death penalty in Canada. To depart from that principle would be to set up a regime where the state – not just government, but all Canadians as a society – would necessarily become complicit in endorsing the killing of one human being by another.

In Carter, this constitutional principle – previously applied in countless Charter cases – was reduced by the Court to the secondary level of an interpretive Charter value, more like a legal concept than a foundational principle. The Court had been repeatedly counselled over several cases that the use of the word “value,” with its multiple legal meanings, could one day lead to this type of conflation, or at least be confusing to those not familiar with the jurisprudence. Now, redefined as a legal concept, the former principle of “sanctity of life” was simply balanced against another legal concept, personal autonomy. Casting aside the broader societal and state interest in protecting human life, there remained nothing but the interest of the individual in how and when she wants her life to end.

True north, abandoned in favour of personal choice. In its absence, the Court’s course navigates toward an uncertain destination; unconstrained by the principle recognizing Canadian society’s interest in the intrinsic worth and inherent dignity of every human being.

It’s true, the Rodriguez decision did not end the societal debate about assisted suicide. Canada’s elected Parliament itself debated the issue six times between 1993 and 2010, each time deciding that the law would remain exactly as it had been affirmed in 1993.

The Carter Court, however, cited the legislative decisions of foreign jurisdictions along with the trial judge’s conclusion “that there is a strong societal consensus that these practices are ethically acceptable” and “there are qualified Canadian physicians who would find it ethical to assist a patient in dying if that act were not prohibited by law” as determinative. The justification for the Supreme Court substituting its opinion for that of the people’s elected Parliament was not found in altered constitutional principles, or a defect in parliamentary procedure, but a presumption of variation in fleeting, unmeasurable and shifting societal values.

The Charter’s section 7 right to life was found to be engaged when an individual reached the point where she felt the need to decide whether to commit suicide, if physician assisted death was not available, or continue living. In other words, the right to life is engaged at the point of the threat of death by one’s own hand. From this position, for the first time in Canadian jurisprudence, the Court introduced the notion that Canadians can “‘waive’ their right to life” and request physician assistance in ending that life.

Physicians, the people we trust with our health, were singled out by the Court to become the new executioners; saddled with both the responsibility to determine a patient’s capacity to give informed consent to death and to be an active participant in that death. Physician assisted death could be by prescription or by administering the terminal medication, transitioning Carter from a case about assisted suicide to include a Supreme decree that includes euthanasia. In doing so, the Court crossed the Rubicon from the legal concept of personal autonomy in making medical decisions, to accept or refuse treatment, and applied the concept to the patient request for physician assistance in dying. The patient-physician relationship is the only thing the two activities of medical treatment and consensual homicide now share in common.

Historically and jurisprudentially well-grounded direction is given by the Court in its declaration of the Charter protection of a physician’s right not to participate in killing her patient for conscience or religious reasons. But what of pharmacists asked to prescribe the lethal “remedy” for life’s ails? Or others who might not be asked to inject a needle but instead to place a physician prescribed potion in the soon-to-be-deceased’s mouth? Or to fetch another glass of water to help with swallowing?

In its final piece of orienteering guidance to Parliament, the Court stated that in 12 months’ time the current laws will be “void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” This short phrase, unlike clues given to orienteers, lacks certainty of both direction and finish. It encompasses: assisted suicide and euthanasia; terminal illness and psychological suffering; the otherwise able-bodied and the disabled – all contending with their own, or a physician’s, interpretation of “enduring suffering that is intolerable.”

Without fixed principles, we are at the mercy of fluctuating values. Without true north, there is no point of reference from which to find certain direction. And, if the Court is determined to overrule the people’s democratically elected Parliament on matters of “competing moral claims and broad societal benefits” in order to impose an “every man for himself” understanding of human rights, the “True North Strong and Free” will be left wandering aimlessly.

This article was first published on Don Hutchinson's blog.

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