Tom Koch is a medical ethicist and writer who has served as a commentator on and consultant in cases of physician-assisted suicide in Canada. His most recent book is Thieves of Virtue: When Bioethics Stole Medicine (MIT Press)
For most Canadians, the October 14 arguments at the Supreme Court in Ottawa will be about medical “aid in dying,” what the Dutch bluntly but accurately call physician assisted or directed termination. But what is really at stake in Carter et al. versus Attorney General et al is Canadian law itself, the meaning of its guarantees, promises, and injunctions. In effect, lawyers for and against “aid in dying” are asking the Supreme Court’s justices to interpret two sections of the Canadian Charter of Rights and Freedoms.
The result will define not simply issues of “assisted dying” but the future of Canadian law and society for years to come.
The Charter’s Section 15 guarantees that “Everyone has the right to life, liberty and security of the person.” Section Seven promises that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination … based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
What does this mean?
In the British Columbia Supreme Court, where the case was first heard in 2012, civil libertarians argued “life liberty and security of person” meant persons should be free to choose the time of their death and the means of their dying. Because physical limits might prevent some from doing so, to not permit the medical termination of the fragile at a time of their choosing is discriminatory, a Section 7 violation.
For their part, Justice Canada’s lawyers insisted the first responsibility of society is to assure the security and protection of the person. From that perspective it is hard to conceive the Charter’s language as inviting a “right” to state-supported, medical termination. To guarantee life’s protection and then argue for an individual life’s ending violates the Charter’s language and intent.
After all, this isn’t about “independent’ action but social participation, through provincial medical services, in the termination of lives we agree aren’t Charter protected, aren’t worth preserving. This is what worries disability activists. Unless everyone has the right to state-supported termination at any age, and for any reason, the civil libertarians make those with cognitive, physical, or sensory limits a special case for which termination is acceptable, and perhaps, desirable. Those who believe life with limits is better than no life insist this violates Section 7 protections. “Life, liberty and security of person” is absolute, not just for the healthy.
Two views of the law and its language are opposed here. The first advances a more or less libertarian assumption of autonomy and individual choice as the Canadian Charter’s bedrock liberty guarantee. From this perspective the state exists to empower personal choices or, at the least, to not impede them. Compelling society’s support of a person’s request to die, demanding we act upon it through provincially funded medical termination, is logical. But there is no “autonomous” section in the Charter. For the libertarians it is implicit, a principle they use to interpret the law.
Based on submitted briefs (like mine), Justice Canada will argue Section 15 means what it says, insisting we support the care and rehabilitation of the fragile while prohibiting their termination, even if it is requested. The technical literature newly diagnosed patients, or those with limiting injuries, are often depressed and suicidal at first but, over time, come to embrace a different lifestyle as far better than no life at all. Should autonomy be invoked to support the state-supported, medical termination of a depressed person who in a moment of despair says to a doctor: “do me”?
Quebec Bill 52
Earlier this year Quebec’s National Assembly passed Bill 52, decriminalizing physician-assisted termination. By defining physician-assisted or directed termination as a basic, simple, medical procedure—like vaccination—it challenged federal jurisdiction in this area.
At present assisted or directed termination (by a physician or anyone else) is a federal crime under the criminal code. If it violates Charter rights it must be so. And federal protections always trump provincial legislation. So a decision against the civil libertarians and for Charter protections in this case would make Bill 52 unconstitutional.
What Supreme Court justices must decide is whether termination is “just” a medical procedure with no special moral import. If it is something more, then Charter guarantees will be invoked and Bill 52 won’t survive.
At stake this week are two competing views of what we mean in Canada by “life, liberty, and security of person”. The civil libertarians argue an American-like insistence on autonomy as the ultimate principle of justice. The nation exists to promote personal choices, whatever they may be. Society’s responsibility to care for its citizens and protect the lives of the fragile, in this view, is wholly secondary. Justice Canada’s lawyers will insist the bedrock laws of the nation insist on social commitment, support, and solidarity—especially for those persons most at risk—as guiding Charter protections of the lives of all.
Lawyers will argue the case in Ottawa beginning October 14. A decision will be rendered by Canada’s Supreme Court justices in 2015.
It is disappointing to see this blog posted on the cmajblogs site just days before the Supreme Court of Canada hearing of Carter v. Canada. I say this not because Koch has reached conclusions that differ from my own but because his blog post is riddled with errors that have no place is this critically important public policy debate.
Koch repeatedly omits key words thereby altering the meaning of what he is critiquing. For example, he says “what the Dutch bluntly but accurately call physician assisted or directed termination” when in fact the Dutch call what is at stake in Carter “termination of life on request and assisted suicide” thus emphasizing that a patient’s request of the patient is critical. He also says that “[t]he Charter’s Section 15 [sic] guarantees that ‘Everyone has the right to life, liberty and security of the person.’” However, section 7 guarantees that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” It is the emphasized part of s.7 that is missing from Koch’s blog and yet is central to the arguments in front of the SCC in Carter.
Koch also misunderstands or misrepresents previous Supreme Court of Canada decisions. He claims that “[t]o argue for an individual life’s ending violates the Charter’s language and intent.” However, the Supreme Court of Canada has previously rejected this position. For example, they have explicitly recognized that a competent individual’s refusal of potentially life-sustaining treatment must be respected even where the withholding or withdrawal of potentially life-sustaining treatment will certainly result in death.
Koch also says “there is no ‘autonomous’ section in the Charter. For the libertarians it is implicit, a principle they use to interpret the law.” But autonomy has been clearly identified as a core Charter value by the Supreme Court of Canada in numerous previous cases.
Koch also claims that “[a]t present assisted or directed termination (by a physician or anyone else) is a federal crime under the criminal code. If it violates Charter rights it must be so. And federal protections always trump provincial legislation. So a decision against the civil libertarians and for Charter protections in this case would make Bill 52 unconstitutional.” These statements reveal a profound lack of understanding of constitutional law – what the Charter applies to (i.e., state action not physicians’ conduct) and how the division of powers between the federal and provincial/territorial governments works (federal legislation does not always trump provincial legislation).
Koch also misunderstands or misrepresents the positions being put forward by the appellants in this case. He says “this isn’t about ‘independent’ action but social participation, through provincial medical services, in the termination of lives we agree aren’t Charter protected, aren’t worth preserving.” But the appellants in this case recognize that s.7 provides that “everyone has the right to life” and they do not judge anyone’s life as “not worth preserving” but rather seek to promote a person’s freedom to end their life when it is no longer worth living to them.
Koch asks “[s]hould autonomy be invoked to support the state-supported, medical termination of a depressed person who in a moment of despair says to a doctor: ‘do me’?” “Of course not” is the obvious answer to this question that will come from those arguing for the decriminalization of assisted dying. Koch fails to note that the appellants are not arguing for this egregious example and that Justice Smith set out clear criteria for access to assisted dying and explicitly required competence and non-ambivalence and explicitly excluded access for those with depression.
And so, in response to the question posed in the title of Koch’s blog “The Law and physician assisted dying: who owes what, to whom?”, I would reply “commentators on Carter v. Canada owe the Canadian public accurate representations of the facts and the law central to the case.” The issue is complex enough just on its own. Misrepresentations only compromise our capacity as a society to resolve it.