Written by Deborah Rankin for VMO
Tuesday, March 24th,

A law professor at McGill University says that a recent decision of the Supreme Court of Canada overturning the ban on assisted-suicide and euthanasia is a "nightmare" and "full of errors". Margaret Somerville, the Founding Director of the Centre for Medicine, Ethics and Law at McGill made these remarks recently to a rapt audience at a public forum organized by the Newman Centre for Catholic students and faculty.

She said that the SCC decision goes farther than simply striking down the ban against aiding someone to commit suicide, permitting euthanasia by physicians in certain circumstances, while cautioning that the ruling is unclear in this regard.

In physician assisted-suicide the doctor prescribes drugs that the patient takes, whereas in euthanasia the doctor administers a lethal injection - in either scenario, ostensibly at the patient's request. However, in jurisdictions where assisted-suicide has been legalized, there are multiple examples of abuse with people being euthanized without their consent.

This is especially true in the case of children and incompetent adults who can't give informed-consent: for example, the Groningen Protocol of the Netherlands permits so-called "voluntary euthanasia" of babies at the parents' request. Pro-euthanasia advocates refer to this gruesome practice as "post-birth abortion" while opponents say that it is really a form of "closet eugenics" - if the child is born with congenital defects the parents can request euthanasia on the pretext of preventing the child from suffering.

But, regardless of the modalities of administration, Somerville was quick to point out that "dying with dignity" - as it is referred to by proponents - involves terminating life. It isn't the same as refusal to prolong life through extraordinary means - a legitimate right - or on a continuum with palliative care - important distinctions that are typically lost in the pseudo-debate over assisted-suicide and euthanasia.

Provocatively titled,"Carter v. Canada or Canada v. Carter: What's at stake in the euthanasia decision?" the forum, featuring a lively exchange between Somerville and Douglas Farrow, Professor of Christian Thought in the Faculty of Religious Studies at McGill, raised perhaps as many questions about the Court's role in shaping society's changing mores as any that it answered on why expert opinion, disproportionately weighted against assisted-suicide and euthanasia, had been ignored in the high court's unanimous ruling in favor of assisted-suicide.

Somerville highlighted the fact that in the SCC Carter decision there were twice as many witnesses allowed to testify for the pro-euthanasia side, compared to the anti-euthanasia side, noting that the Court only accepted reports from supporters of euthanasia in framing the reasons for its decision. She said that many legal scholars simply couldn't understand how, ''all of the judges went along with it'', joking that the acronym for ''medically assisted death'' is MAD, eliciting laughter from the crowd.

For his part Farrow, made it clear that the Court's decision was little more than an exercise in fear-mongering, one which falsely equated dignity with autonomy. He talked in detail about how the decision was riddled with "unexamined assumptions" that were being "coded into law" about the preferred option of hastenning death rather than countenancing the possibility of allowing an individual to experience any loss of autonomy.

One of the arguments against assisted-suicide is that it is framed as a binary alternative to loss of autonomy, without presentation of alternative options or discussion about how to enhance a person's quality of life in trying circumstances. In such cases, people who already feel that they are a burden to their families or a drain on the public purse often feel a "duty to die".

Farrow mused about where this "extremely flawed reasoning" might lead, citing as an example the case of someone who is frail elderly, but no longer able to live autonomously, and having to go into a nursing home. Would assisted-suicide be the next inevitable step?

He made his personal feelings about assisted-suicide clear, saying: "I don't want to have a doctor who participates in killing their patients. Where are my rights in this?" And while he may have been waxing a tad poetic in saying that the "Supreme Court justices (were) playing philosopher kings and queens", he surely wasn't kidding when he said, "the Carter case dented any respect I had for the Court."

In an era when we hear constantly about the need to cut healthcare costs and lengthy waiting lines for procedures and treatments, many citizens may worry that physician-assisted suicide and its more draconian cousin of euthanasia - formerly known as mercy-killing - may fast become the new norm in medicine, without genuine safeguards to protect vulnerable individuals.

The SCC Carter decision stated that the ban on assisted-suicide violated the rights of a competent adult to commit suicide: The judgement said, "In seeking to protect vulnerable Canadians from abuse, the law also caught in its net competent adults who had freely chosen to end their life. As such, the law encroached upon the life, liberty and security of the person", more than could be justified under the charter's "reasonable limits" clause.

Unfortunately, in its ruling the Court didn't make a crucial distinction between an individual choosing to exit life on their own vs.aiding and abetting another person to commit suicide.

Now the average person might wonder how the fundamental right to life morphed into a dubious right to die, seemingly almost overnight. Even granting that "liberty" factors into the equation, aren't rights indivisible in law and grounded on the foundation of the universal human right to life? And what about "security" of the person? Where is protection for people with disabilities, mental health problems, and vulnerable children, when the criteria for decisions in matters of life and death is fluid?

The Carter decision relies on open-ended definitions permitting medical assistance in dying when a person has a "grievious and irremediable medical condition" - one involving "enduring and intolerable suffering" - all of which could apply in cases of physical disability and mental anguish based on real facts or simply diminished capacity: it's no exaggeration to say that a child may feel that their world is coming to an end because they can't get something they want, like a toy or candy - and ditto, for immature adults.

Farrow said that it all comes down to "bad law" based on "confused logic, emphasizing that the Carter ruling really allows for either compassion or consent to serve as a rationale for assisted-suicide and euthanasia. In response to a question from a member of the audience about any possible collision of rights - a likely outcome given the fact that stakeholders have such different views and strong passions about the subject - he was blunt: "There is no philosophical or legal basis for resolving conflicts of rights," he said, adding, "People should be honest about the conclusions to which their premises point."

Somerville said that the Court wasn't responding to facts on the ground or to changes to the laws as the justices of the high court claimed; rather, "The SCC Carter ruling changed the law". As a remedy, she would like to see the federal government use the notwithstanding clause to reinstate the current laws for the next five years, giving Parliament time to come up with a new law.

A member of the audience, geriatrics specialist Dr. Catherine Ferrier, suggested people contact their MPs to let them know that they want to maintain the ban on assisted-suicide and euthanasia. "It's important for lots of people to speak to their MPs," she said.