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KINGSTON - The British Columbia Court of Appeals set aside this week a lower court decision that would have decriminalised assisted dying in the country. The lower court decided about a year or so ago that provisions in the Criminal Code that prohibit assisted dying were overly broad. That is, it realised that there are situations toward the end of our lives where it would be reasonable for some of us to consider assistance in dying and where our considered choices ought to be respected and facilitated by trained health care professionals. Unlike the lower court the Court of Appeals did not actually look at the substantive issues, rather the majority of judges on the court — it was a 2:1 decision — decided that if any court should look at this matter surely it is the Supreme Court’s job to do that.
I actually agree on this issue, and I do not recall any legal expert in the country who doesn’t think that this issue will eventually end up on the plate of the Supreme Court of Canada. Stay tuned for a decision on this matter some time in 2015. It is far from over.
Independent of the so-called Carter case that’s furthest advanced in the legal system, another legal challenge to the prohibition of assisted dying is currently winding its way through the court system in Quebec. Also in Quebec the government has introduced legislation that would essentially permit assisted dying for legally competent people.
It has given voice to what the overwhelming majority of Quebecers think ought to happen in that province. A whopping 80% of Quebecers believe assisted dying should be made available to competent patients provided certain stringent conditions of voluntariness, unacceptability of the patient’s quality of life, etc., are met. This distinguishes Quebec’s government — it is supported by a cross-party consensus on the issue — pleasantly from the fundamentalist Christian politicians currently in charge in Ottawa.
Stephen Harper and his government colleagues know very well that support for the decriminalisation of assisted dying has strong majority support in all Canadian provinces — even among conservatives.
Why should we decriminalise assisted dying in the first place? Well, consistent majority support of the Canadian people for the last two decades or so is a pretty good start if you ask me. Fundamentally though it boils down to the question of what kind of society we want Canada to be.
Is it a society whose citizens have the right to make fundamentally important self-regarding decisions with regard to how we live our lives or a society where, when it really matters, the state steps in and tells us what we can and what we cannot do?
It is self-evident that these kinds of rights are particularly important toward the end of our lives. Throughout our lives, in important matters affecting our own destiny, we are in control, yet when we reach the end of our lives the state apparatus steps in and inflicts its moral views on us.
Just to be clear, we have already certain rights that even Mr. Harper hasn’t taken away from us. There is no law in the land that criminalises us killing ourselves. Yes, we are legally entitled to commit suicide if we wish to do so. We are also legally entitled to refuse medical care even if that leads foreseeably to a shortening of our lives. So, as far as our federal government is concerned, if we really find our lives not worth living any longer, it is cool to jump off a building, shoot ourselves, or end our lives in any other number of deeply unpleasant and stressful ways.
The one thing we must not do, as far as our Ottawa overlords are concerned, is to receive assistance from medical professionals that would permit us to end our lives peacefully when we wish to do so, surrounded by our loved ones. That’s just not on.
We know that even the best palliative care, available reliably when it’s needed to whoever needs it, won’t do away with some people asking for assistance in dying, simply because palliative care isn’t actually the answer to their suffering toward the end of their lives. Anti-choice activist in the palliative care community are either disingenuous or dishonest when they pretend otherwise.
A lot of hay has been made of the risk of abuse, the so-called slippery-slope risk. Disability activist organisations such as Not-Dead-Yet paint a scenario where the lives and well-being of disabled people would be in grave danger if we decriminalised assisted dying. They express concerns, worries, and even graver concerns. The one thing they do not have are hard data to back up their wild claims. A significant number of jurisdictions have decriminalised assisted dying in some form or shape. We have a lot of data with regard to what is and what is not happening in those jurisdictions. The one thing you cannot find, is that a disproportionate number of disabled people seeing their lives ended in these jurisdictions.
So, much as one appreciates these concerns and worries, they just aren’t a good reason not to decriminalise. They are red flags indicating that we should put the necessary safety mechanisms in place that would stop any attempts at such abuse right in their tracks, but that’s where this matter should rightfully end. Baseless concerns and worries are not a good foundation for government policy.
Talking about abuse. I have recently spent two years of my life investigating end-of-life issues as part of a research project on behalf of the Royal Society of Canada. Our international team of experts combed through all the available empirical evidence from the jurisdictions that have decriminalised. Given that people who are supportive of the decriminalisation of assisted dying are strongly motivated by empathy for the suffering of their fellow citizens toward the end of their lives the abuse question quite naturally weighs heavily on one’s mind.
The fact of the matter is this: We have seen zero evidence that the decriminalisation of assisted dying has led anywhere to an increase in the number of cases that arguably constitute cases of abuse. In jurisdictions where data about the before and the after decriminalisation exist we actually found that cases of abuse halved.
Does that mean that we should be complacent about these issues if we decriminalised? Certainly not. But, we live in a functioning democracy. It is certainly not beyond our capacity to legislate and regulate an assisted dying regime in Canada that reflects the will of the Canadian people on this issue and that at the same time protects our most vulnerable against abuse.
Udo Schuklenk holds the Ontario Research Chair in Bioethics and Public Policy at Queen’s University,between 2009 and 2011 he chaired an international expert panel drafting an end-of-life report commissioned by the Royal Society of Canada. He tweets @schuklenk