Politics·Analysis

Let the politicians keep talking, Supreme Court already settled death debate: Neil Macdonald

Parliament will almost certainly go on arguing long after the Supreme Court's June 6 deadline about who should be allowed an assisted death, and who shouldn't, and how sick you should be before society allows it, and other issues. But thanks to the top court, Parliament's indecision won't matter, Neil Macdonald writes.

Whether Parliament passes a doctor-assisted death bill or not, the law changes on June 6

Last year the Supreme Court recognized the right of consenting adults enduring terrible physical or mental suffering to end their lives with a doctor's help. (Shaun Best/Reuters)

June 6, notwithstanding jeremiads about Canadians being free to perish like lemmings, will be much the same as June 5.

Most of us will go about our pursuit of happiness. Some of us will be born that day, and some will die, and a few of us will be told to tidy up our affairs, that there's no hope left, and such time as does remain will be filled with despair and agony.

The difference will be that as of June 6, thanks to the Supreme Court of Canada, those luckless Canadians will have the legal right to a neat, painless death, with help from a doctor, if a doctor can be found who will agree to do it.

Parliament, though, will almost certainly go on arguing long after June 6 about who should be allowed an assisted death, and who shouldn't, and how sick you should be before society allows it, and how much time you should have left before you qualify, and how clear your mind should be, and whether anyone should have such a right in any event, because really, shouldn't it be God's decision?

That of course is what parliamentarians do. They can and should talk for as long as they see fit; years, if necessary.

Politicians are notoriously unable to decide such matters, and given the option, will discuss them indefinitely, and given a deadline, will likely miss it, which Parliament is in the process of doing right now with the government's bill to regulate medical assistance in dying.

Health Minister Jane Philpott (right) and Justice Minister Jody Wilson-Raybould respond to a question about their government's assisted dying legislation. The bill is being scrutinized in the Senate. (Adrian Wyld/Canadian Press)

Happily, it doesn't matter. Because the nine learned, fearless jurists a few doors down Wellington Street have once again made the tough decisions.

Absent some new law from Parliament, the existing criminal prohibition on helping someone commit suicide is null and void as of June 6, struck down as unconstitutional.

In part, the high court ruled that under the criminal prohibition, "people who are grievously and irremediably ill cannot seek a physician's assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel."

This drew the usual howls of "judicial activism" from conservatives.

As with abortion, the Supreme Court, not Canada's elected politicians, made the tough decision about doctor-assisted dying. (Albert Couillard/CBC)

Actually, the justices were doing their job.

Courts are supposed to decide whether laws offend the Constitution. The Supremes decided the ban on assisted suicide did. And that's that.

A previous generation of high judges did exactly the same thing in 1988, when they struck down the old Criminal Code restriction on abortion, ruling it "manifestly unfair," creating so many barriers that abortion was effectively unavailable even to women who legally qualified for one.

As it did with the assisted dying law, the court gave Parliament the option of creating a new, constitutional law, which of course Parliament tried and failed to do.

The result: Abortion became just another medical treatment, a matter between a woman and her doctor, with government out of the picture. Just as assisted dying will almost certainly be as of June 6.

Doctors, after all, are responsible, self-regulating professionals, governed by quasi-judicial panels of their peers, who enforce ethics and standards of practices. For better or worse, democratic society trusts its doctors, just as it trusts its judges.

After the abortion ruling, anti-abortion advocates predicted anarchy, with waves of pregnant women, suddenly freed of any moral restriction, demanding early terminations.

Anti-abortion activists march in front of Parliament Hill. ((Sean Kilpatrick/Canadian Press))

In fact, Canada's abortion rate is a good deal lower than that in America, where states have come up with all sorts of creative ways to block legal access.

Available UN data suggests the abortion rate per 1,000 women in Canada is about 15, amongst the lowest in the world, while in the U.S., it's about 20 (and even higher in so-called "red states" that lean Republican).

The takeaway is obvious: offer people education and birth control and good medical care, and they will consult with their doctors and make informed decisions. No criminal sanctions needed.

'Violent or dangerous means'

Surely the same applies to assisted dying.

The law as it stands allows suicide, has since 1972, but dictates that you have to do it alone.

And because society paternalistically sees fit to severely restrict a wide range of drugs (for our own good, of course), death without suffering is difficult to achieve. It is not possible to go down to the pharmacy and buy an EpiPen loaded with morphine.

You can, of course, slash your wrists or hang yourself or jump off a bridge – resort to "violent or dangerous means," as the Supreme Court puts it. Some Calvinist politicians don't think it's the government's role to change that and make suicide easy and painless. 

Conservative MP Jason Kenney actually calls the government's assisted dying bill, which is in the process of being chewed to pieces in the Senate, a "euthanasia bill."

But reality is pitiless. If you're far enough into a condition like Lou Gehrig's disease, you might not even be able to stand up, let alone summon the strength and will to overcome natural survival instinct and put an end to it by your own hand.

This is a predicament imposed by government, and now lifted by our courts.

As of June 6, no doctor will be obliged to assist someone who wants to die, just as no doctor is obliged to perform an abortion.

Free to keep talking

But any doctor who wishes to help a suffering person will be free to do so without becoming a criminal, subject only to the strictures governing all doctors. The Supreme Court has even offered doctors some guidance on when it's appropriate to intervene and offer help.

The world won't end June 6. There will just be less suffering. And Parliament will be free to keep talking as long as it likes.

Or just do nothing. The decision has been made.

About the Author

Neil Macdonald

Opinion Columnist

Neil Macdonald is an opinion columnist for CBC News, based in Ottawa. Prior to that he was the CBC's Washington correspondent for 12 years, and before that he spent five years reporting from the Middle East. He also had a previous career in newspapers, and speaks English and French fluently, and some Arabic.

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