Almost a year ago Justice Lynn Smith, of the British Columbia Supreme Court, found in favour of the plaintiffs in a landmark ruling which struck down the assisted suicide provisions of the Canadian Criminal Code, and gave permission to Gloria Taylor, one of the plaintiffs, to receive help in dying, should she choose to receive it. (You can read the judgment here.) Part of this judgment was subsequently challenged by the government immediately, namely, the part of the decision in which the provisions of Section 241 of the Criminal Code of Canada were suspended in the case of Gloria Taylor, a woman suffering from ALS who died without assistance shortly after the government lost its appeal. The section in question reads as follows:
241. Every one who
(a)counsels a person to commit suicide, or
(b) aids or abets a person to commit suicide,
whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Madam Justice Smith gave the government a year to correct the inconsistency between Section 241 and the Charter of Rights and Freedoms, but the government has, not surprisingly, since everyone is of the opinion that the matter will eventually wend its way to the Supreme Court of Canada, chosen to challenge the judgment itself. This challenge is now proceeding before the British Columbia Supreme Court, and the lead counsel for the government, Donnaree Nygard, has opened the government’s case by claiming a number of things which are arguably not true. I want to consider aspects of those arguments, which, rather curiously, includes a claim seldom made in arguments against assisted dying. (A summary of Nygard’s argument can be read in a number of newspapers. This link will take you to the Globe and Mail iteration of a Canadian Press article that blanketed the country two days ago.)
Nygard claims that the reason people seek assisted dying is simply “that people who contemplate assisted suicide are simply scared of suffering, even though they might be able to cope.” It is hard to know what to make of this argument. Call it the “scaredy-cat argument.” First of all, the “scaredy-cat argument” – and some people, despite Nygard’s contemptible accusation of cowardice, are justly afraid — shows a lack of understanding of the many and various forms of suffering that people are forced to undergo in the course of dying, or living in intolerable circumstances. But second, and more important, what business is it of the government to make claims about people’s courage or lack of courage in dying? So, some people are afraid. Sure, if they are forced to do so, they not only will cope, but they must. There being no other option, if that is what they are forced to do, as Nygard argues that they should be, they will have no choice but to “cope,” whatever that means. If it means they must endure, well, yes, they will endure their sufferings if that is what they are forced to do. This is tautologous. The question is whether they should be forced to do so, and arguing that “many of these people find that in fact they are able to cope and they are able to find enjoyment in life,” as Nygard does, adding that “[t]hey are acting out of a fear of the future,” is simply to restate the problem in place of giving a reason why they must be forced to live through that future.
One of the judges before whom Nygard is making these arguments, is reported to have said, in response:
It’s surely the ability to engage in or appreciate the full range of human experience. … This argument [Nygard's] is cast in such negative terms. It’s about fear of suffering or fear of loss of autonomy. But [isn't] life a big positive?
Which shows that he hasn’t thought very much about the problem of suffering. The point is precisely that, for those seeking help to die, “the ability to engage in or appreciate the full range of human experience” is simply absent, in their opinion, and life is not a “big positive.” Finch seems to show a breathtaking disregard of the liberty interests and dignity of the people who are most closely related to the question of assisted dying that it effectively calls his ability to judge fairly in this situation into question. Before he delivered himself of the above, Finch had asked Nygard “whether life was more than a pulse of or electrical activity in the brain,” suggesting that, in fact, underlying his question were religious considerations that he left undeclared — though he does in fact then go on to ask the pertinent question:
Shouldn’t it be up to the individual to decide when that’s no longer a life for him or her?
That, of course, is the key question, and the one that is so often simply elided by bringing in other concerns, concerns that are, in the end, roundabout ways getting the result that the churches and other religions, for the most part, demand: a total ban on assisted dying of any sort.
And this is something that must be kept in mind here. The arguments that are typically used to “demonstrate” that assisted dying is unsafe are really religious arguments in disguise. It has been shown again and again that, where assisted dying has been legalised, no one (and certainly not a specific class of people tendentiously labelled “vulnerable”) is put at risk. Certainly, they are no more at risk than those who choose to refuse treatment or have treatment withdrawn, which people in Canada are already entitled to do. The point that I want to make here is simply that these apparent arguments against assisted dying are really stand-ins for religious arguments which are not admissible in secular contexts. If they were not, they should also be concerned for patients’ rights to demand termination of treatment, and even of nutrition, and they show no such concern. Push hard enough and those who use these arguments would be forced to admit that their opposition is deontological and absolute, and does not really depend on consequential concerns at all.
Even taking all this into consideration, however, Nygard’s claim that “many of those people [who are seeking assistance in dying] find that in fact they are able to cope,” does not deal with those who do not fall within the scope of that ‘many’, and are simply unable to cope, and find their circumstances so straitened by their suffering that life no longer has value for them. Nygard argued that there is “no ‘right answer’” to the question at issue in the assisted dying debate. She also says that “medical advances mean [that] most physical pain can now be controlled and there are also ways of dealing with psychological distress” (my emphasis) But most is not all, and, if, regarding her further argument that some people find that they are able to cope, Nygard is referring to the research done in Manitoba by Harvey Max Chochinov, Thomas Hack, Thomas Hassard, Susan McClement into what they call “dignity therapy,” it needs to be stressed that fully 10% of their research subjects still wanted the option of assisted dying at the end of the “therapy.” This is actually higher than the percentage of those who opt for assisted dying in the Netherlands or Belgium! Of course, the research being carried out in Canada (Manitoba), was carried out in a place where assisted dying was not an option, and nowhere, at least so far as I am aware, was that taken into consideration as a factor influencing the results of their study. Since they knew that assisted dying could not be provided, how reliable could their answers be to the question whether or not they would still welcome assistance in dying? Furthermore, while some of their subjects died in the course of the study, the study did not include any details about how they died, whether they asked for help in dying at the end, how much they suffered in the course of their last days, or many other variables obviously relevant to their study (which can be downloaded in pdf format here).
Nygard also argued that Parliament had already weighed the considerations on all sides of the argument numerous times:
And on each occasion [she argued], [Parliament] has come to the conclusion that the need to protect individuals in vulnerable circumstances outweighs the interests of those who seek assisted suicide.
This, however, is risible. When, in 2010, Parliament had an opportunity, on the second reading of Francine Lalond’s bill to amend the criminal code to permit assisted suicide in some cases, to send the matter to Parliamentary committee, where it could have received detailed consideration, it balked, and defeated the private member’s bill by a large majority. But no one who reads through Hansard can claim that Parliament at any time has weighed all sides of this matter in a disciplined, dispassionate or informed manner. Indeed, much of the argumentation (if it can be so dignified) was either directly or obliquely religious in orientation.
Nygard claimed that what is needed is a complete ban, and that it is a matter for Parliament to decide, not for the courts. But this simply bypasses the concern, justly held, that Members of Parliament are, for political reasons, simply unable to argue the issue thoroughly, because of electoral fears. In the cases of abortion and gay marriage it was the Supreme Court of Canada that decided the issue, because Parliament was simply unable to deal with the issues in an informed and impartial way. To suggest that Parliament should deal with the issue of assisted dying flies in the face of the Canadian experience. Besides, Nygard seems not to understand Justice Lynn Smith’s ruling. She argued that, in that case
[t]he trial judge erred in addressing the case as if she were tasked with deciding what the right answer was, rather than deciding if the Parliament had struck a reasonable and appropriate balance.
But this is ridiculous. The courts cannot be held hostage by Parliament, since the judiciary is independent of Parliament, and must be. The courts are precisely the place where an issue such as assisted dying should be considered, for the courts must ensure that the rights of individuals or minorities are not abridged by Parliament’s failure to act. The case of abortion is a telling one. Parliament was (perhaps justly) afraid to take the matter in hand, and in the end it was left to the Supreme Court to uphold the rights of women. The government did not challenge that decision, and though a few religious fundamentalists in Parliament are trying to reopen the question, they have been unsuccessful. The trial judge did not err, but considered the case on its merits as a challenge to Section 241 of the Criminal Code under the Canadian Charter of Rights and Freedoms, a constitutional provision which it is, in fact, the duty of the courts to uphold.
Nygard’s other argument considers the fact that most countries have not legalised assisted dying, and while this may be true, that is not to the point. People in many countries do not have the rights that are provided under the Canadian Charter of Rights and Freedoms (included in The Constitution Act 1982). Besides, Nygard’s claim that Justice Lynn Smith’s decision provides for broader provisions for assisted dying than exist anywhere else is false. The Globe and Mail sums up the decision as follows:
The B.C. Supreme Court decision said the law must allow physician-assisted suicide in cases involving patients who are diagnosed with a serious illness or disability and who are experiencing “intolerable” physical or psychological suffering with no chance of improvement.
This is not broader than the assisted dying legislation in the Netherlands, Belgium or Luxemburg. It is broader in some respects than provisions for assisted suicide in Switzerland, but only because this was never intended simply as an assisted dying measure. In Switzerland a person who assists a suicide from self-interested motives is subject to fine or imprisonment up to five years, but there are no limitations on who may ask for and receive assistance in suicide. There is no indication that illness is criterion at all, and so it provides, in this respect, much broader provisions for assisting a suicide than any other law regarding the matter of assisted suicide, and certainly much broader than the provisions laid out by Justice Smith in her judgement.
And this brings me to my last point. In the Globe and Mail article Amy Hasbrouck of the anti-assisted dying group Toujours Vivant — Not Dead Yet said that she was opposed to legalising suicide because “it can have a discriminatory effect on people with disabilities.” This, as I have already pointed out, is not true. However, Hasbrouck went on to say:
Society has a public policy to prevent suicides and that policy is a great one – we exercise it for people who are young, who are being bullied, people who are lesbian, gay, transgendered, bisexual and anyone in distress … .
Except for, if a person has a disability and expresses the same suicidal feelings, that person who requests assisted suicide is likely to get it, and we feel that is a discriminatory double standard.
Again, this is based on a misunderstanding. First of all, suicide is already legal in Canada, so the issue is not a question of legalising suicide. But, second, there is no reason to include those who ask for assistance in dying as “committing” suicide, or intending to do so. The word ‘suicide’ is uneasy in this context, and should, strictly, not be used. We are not talking about people who, in a moment of despair, decide to do away with themselves. We are talking about people whose lives have come to the point where they find continued life intolerable, and where only death can release them from their torment. Nygard calls such people cowards, which is nonsense, but, be that as it may, what such people are asking for is the liberty to die on their own terms.
What Nygard and others miss entirely — and it is hard to understand how they can be so entirely blind to this — is that the prohibition of assisted dying means that people are being forced to die in the way that is spelled out to them by their diseases. Some diseases bring about death in predictably savage ways. Since we do not force people to undergo the sufferings of disease without relief, there is no obvious reason to prevent them from dying on their own terms, not on terms dictated by their diseases. Some people, like Tony Nicklinson, are trapped in circumstances which are such as to make continuing to live an intolerable burden. Some, like Elizabeth, found the prospect of living entombed in her body intolerable. Had she had the provision for assisted dying that was offered to Gloria Taylor, she might well have lived several years longer. How we die should be left up each individual to decide. The idea that the lives of “vulnerable” people would be unceremoniously snuffed out is ridiculous, and just how ridiculous is being revealed year by year in places where assisted dying has been legalised. There are, indeed, many disabled people who do not support the Alliance of People with Disabilities, whose opposition to assisted dying is excellent fodder for the Euthanasia Prevention Coalition and many other scare-mongering death cult organisations. We should commend the Alliance’s work with disabled people, but its stand on assisted dying is perplexing, since many disabled persons have, for their own reasons, sought help in dying. Tony Nicklinson. for example, was severely disabled, and sought help to die. The Telegraph reports that another disabled person has joined in the appeal of the Nicklinson decision. And Elizabeth, who was becoming increasingly disabled, would have added her voice. Disabled persons are not unable to voice their own opinions on the matter, and no association can reasonably speak for all of them. It’s high time that we began to recognise this for what it is: a liberty interest of individuals that is arguably already provided for in the Charter of Rights and Freedoms of the Constitution Act 1982.