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.