From the online site of the Toronto Star
DiManno: B.C. assisted suicide ruling an alarming interpretation of Charter
June 18, 2012
Remove the euphemism and assisted suicide is homicide.
B.C. Supreme Court Justice Lynn Smith thinks so, with an alarming landmark interpretation of the Canadian Charter that would allow the extinguishing of lives — sentient lives, not a non-person fetus in the womb. Section 15, which guarantees equality, discriminates against people with severe disabilities, Smith concluded in the decision released Friday, because those afflicted with such limitations are unable to kill themselves unless somebody else provides a helpful hand: injection, drugs, and why not a pillow over the mouth or a gentle push off the ledge of a very tall building?
They only take up space, after all, the acutely infirm and frail elderly, the forever institutionalized in their long-term hospital beds and just-existing facilities; such a burden on families and society. And some — like Gloria Taylor, the woman contending with amyotrophic lateral sclerosis who was a plaintiff in the court challenge — apparently see themselves as no more than the sum part of their disabilities, unable to go on at some point, seeking an abetted release from unbearable misery.
But if that’s the image of self, how long before it might become an acceptable view of others?
Open that Pandora’s box of ethical imperatives — what we’ve always believed morally wrong, murder most paramount — and absolute prohibition disappears. It doesn’t take a Margaret Atwood or Kazuo Ishiguro to imagine a dystopian future where the most vulnerable among us might be deemed expendable, with death a construct of convenience.
Who judges the quality of mercy in mercy killings? The Netherlands, first among nations to slide from assisted suicide to legal euthanasia (in 2001), assured that sedative dosages would be permitted only under rigorously monitored conditions and narrowly to adult patients suffering “great pain with no hope of relief’’ who had demonstrated “informed consent.’’ But Dutch hospitals have admitted to euthanizing babies deemed to be in tremendous pain from incurable disease or born with extreme deformities. There are those, including doctors, who’ve advocated euthanasia for the severely mentally retarded — individuals who clearly can’t form consent.
The slippery slope isn’t an exaggeration; it’s human nature. That’s why absolute prohibition is the standard in all but a handful of jurisdictions that Canada might now join, should this B.C. court ruling either go unchallenged or find concurrence at the Supreme Court of Canada, where the case is undoubtedly headed.
Canada’s top court also has before it the case of a 60-year-old man at Toronto’s Sunnybrook Health Sciences Centre who has been in a purportedly vegetative and irreversible state since a brain infection in 2010. Two doctors want to pull the plug over the wishes of Hassan Rasouli’s wife and family. Indeed, the physicians reject even the advisory framework of an existing provincial ethics committee that considers such cases and, for that matter, the Health Care Consent Act of Canada, arguing that ending someone’s life is “not treatment’’ as medically understood.
The Ontario Court of Appeal ruled against the doctors last year, ordering the patient be kept alive, “with the assistance of life-support measures’’ until the spouse agrees there is no further hope of recovery. Undaunted, the physicians appealed to the Supreme Court. Clearly, they consider themselves the ultimate arbiters of life and death. They’ve not been remotely chastened by developments suggesting their original diagnosis was wrong anyway since Rasouli, according to his family, has since been able to communicate by making a thumbs-up gesture.
This might all seem a long way from the B.C. case ruling on assisted suicide, but it’s all of a piece: quality of life, who decides, and the lobotomizing refrain of “dying with dignity,’’ as if any of us can be assured of that. Dying with dignity is not a quantifiable entitlement and certainly can’t be enshrined in law. There are no Charter guarantees protecting anybody from a life free of sorrow. Some will die on the spot, felled by a heart attack. Others will endure years of discomfort and anxiety, with all the “indignities’’ that are inflicted by medical procedures and hospitalization.
In her voluminous 140,000 word judgment, the B.C. judge also applied Section 7: the right to life, liberty and security. If I understand it correctly, that would include the liberty to commit suicide, which isn’t illegal in Canada. But Taylor wouldn’t be able to commit suicide unassisted and that has not been legal, as reinforced the last time the Supreme Court visited this issue 19 years ago, by a slender 5-4 decision.
It is radical inside-out rationalizing to turn right to life into right to death, with a tortured reading of the Charter to bless approval of murder in some circumstances. The judge may be an exceptionally wise person with a brilliant legal mind, but she displayed a shockingly poor grasp of some basic premises when challenging a government lawyer’s argument that life is sacrosanct and the state cannot condone the taking of a life.
“But (the state) sends young men off to war,’’ Justice Smith countered.
That is an absurd analogy, seriously undermining Smith’s tall forehead bona fides.
What’s most regrettable in this case, the thing at the dark heart of the matter, is the fundamental Right to Die ethos that a life overwhelmingly restricted, an existence profoundly enfeebled, is a life not worth living. As if Gloria Taylor, a mother and grandmother, will one day — as she presumably believes — when her body is utterly stiffened and unresponsive to her commands, take no joy from the sound of her grandchildren’s voices, or music, or a book read to her, or a movie on TV, or the sun on her face. And if the state agrees that such a life can be legally terminated, with a doctor assisting to hasten death, then how do we reassure the many among us with severe handicaps, physical and mental, that their lives have equal worth to the healthy and hale? It would be a legal and moral contradiction. It would be a lie.
I have no faith in the stipulation that Justice Smith appended: That an attending physician and consulting psychiatrist each attest Gloria Taylor is competent and her request for a physician-assisted death is shown to be voluntary, come the day she decides to end her life. We have seen, in other jurisdictions, how such a caution can be exploited and marginalized. Ours is an era of well-documented elder abuse. Assisted suicide is an invitation to incalculable harm and wrong-doing against the vulnerable.
The judge immediately placed a 12-month suspension on her ruling, allowing Parliament time to write new legislation or for the anticipated appeals by provincial and federal governments to be filed. Taylor was given a legal exemption so that she needn’t await any of that, can go ahead and kill herself, if she chooses, with a doctor assisting who won’t be charged.
This is no longer exclusively about her, however, because all Canadians have a stake in what we can morally abide.
Parliament has already spoken on assisted suicide. But in a country that lives and dies by the Charter, politicians are trumped by judges. Frankly, I trust neither.
There is one other legal remedy to the purported inequality that exists between those capable of killing themselves and those who aren’t: Make suicide illegal for everybody.
It won’t make any difference to those who succeed. Those who survive can argue their case before a judge. I’d like to see the first one to dare convict.
Rosie DiManno usually appears Monday, Wednesday, Friday and Saturday.