supreme court confusion

Like most Canadians, I don’t make it a habit to read judgments written by the Supreme Court of Canada. Rather, I rely on journalists and other specialists to provide summaries and analyses in relation to various cases decided by the court. It is perhaps also fair to say that the trust I place in these secondary sources mirrors the trust I place in the court itself.

But this has recently been put in question for me.

In the past several days, a doctor in the Quebec City region became the first in Canada to (legally) provide a patient with a lethal injectors on to end his or her life and suffering. This physician’s action was made legal by Quebec’s new assisted-death law and by the February 2015 judgment of the Supreme Court in Carter vs. Canada. More specifically, the legality of this assisted-death should be understood with reference to the Supreme Court’s follow-up decision last week, in which it granted the Federal Government four more months to craft legislation but also allowed the legislative vacuum in Quebec to be filled by that province’s new law.

  It was after hearing these various news reports that I decided to go back and read the Carter decision for myself, in order to understand the arguments that have led to such a dramatic change in our moral and medical landscape. The result of my reading, I must say, is a greatly diminished trust in the Supreme Court of Canada.

Let me offer two preliminary observations:

In working toward their judgment in Carter, the justices determined that the fundamental purpose of the criminal code provisions that prevent physician-assisted death is the protection these offer to vulnerable individuals. That is, the court explicitly refused to see these provisions as oriented toward the preservation of life, which they complain is be a too-broad objective for any law. And this narrow approach to the criminal code provisions led the justices to a similarly narrow preoccupation with the medical/clinical context and the question of whether safeguards against abuse could be assured in any euthanasia regime.

Yet this approach also expresses the court’s studied refusal to acknowledge that the legalization of physician-assisted death entails a cultural transformation – in this case, leading to a culture in which certain forms of life will be diminished and devalued. A key question is not simply whether vulnerable persons are put at risk, but whether there will be an ever-widening class of those who feel it is right and necessary to seek the termination of their lives – especially, perhaps, those who see their own suffering mirrored in the lives of their family. (In this vein it is instructive that one of the reasons given by the appellant for seeking physician-assisted death was: “I do not want my mode of death to be traumatic for my family members.”)

Secondly, the Supreme Court sets up an inexplicable parallel between the right to refuse medical treatment and the right to have one’s life ended. Contrary to what the justices suggest, a refusal of treatment never hastens or causes death – it is not a “seeking of death,” as they put it. A medical treatment may prolong life, but the refusal of same does not hasten death. Rather, in the latter case death simply occurs – as ever it will. The justices appear to believe that since death looms large in each situation, we must conceive a parallel in intention. But they never demonstrate that the ditch of incommensurability between these two scenarios can be bridged.

Beyond these two preliminary observations, however, there is a further, fundamental contradiction at the heart of this judgment.

The justices don’t define autonomy, yet under the rubric of autonomy and liberty they are evidently keen to preserve the individual patient’s right to decide concerning his or her death. Autonomy, here, is broadly understood in terms of control over one’s own bodily integrity, medical care, and dignity. It entails a person’s right to inhabit his or her body free from constraints that others might impose; free from the imposition of any values, judgments, or treatments inconsistent with a person’s self-understanding. It is a largely negative account of autonomy that is profoundly atomistic and which sets up a hedge around the person (patient) in his or her body.

And yet in the very next breath the justices insist that the self in its autonomy requires and has a right to the bodies and actions of others. It turns out that the self who decides he wants to end himself isn’t autonomous. He needs (the law compels the provision of) someone to push the plunger. By definition, individual autonomy has become inclusive of another self in action and intention.

But you cannot have it both ways. You cannot build the whole infrastructure of an argument on the right of individual self-definition, self-expression, and atomistic autonomy in the face of suffering, and then suddenly slip into a communal ethics that understands human persons in terms of our inevitable and necessary interdependence and mutuality.

If we really need one another, and if our lives are so bound up with each other that we have a right to another’s self and body to end our selves, then the modern doctrine of autonomy upon which the court relies is a lie. The justices have found themselves pushed toward a communitarian ethics and yet have refused to take the logical step of retracing their steps to discover a shared understanding of life, suffering, and death beyond merely individualistic ‘values’. They haven’t bothered to acknowledge that we must search out the sources of such a possible, shared understanding.

The Carter decision gives little impression that the justices of the Supreme Court have deliberated on these important and difficult questions with anything approaching the care that they invite. It leaves the impression that law in Canada is a leaf blown on the winds of cultural change and judicial whim. And, needless to say, that does not inspire trust.

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