Wednesday, May 20, 2015

No notwithstanding clause on assisted suicide

In the three months since the Supreme Court of Canada handed down its decision on assisted suicide in Carter v. Attorney General of Canada, there has been a lot of thumb twisting about what to do. The Court gave Parliament a year to come up with something new before the law is officially taken off the books. Given a fall election, it's hard to imagine our legislators will come up with a new law in time by the deadline of February 5 of next year.

In the interim, there have been a number of groups opposed to "death with dignity" who have said the solution is simple - invoke the "notwithstanding clause" to "immunize" the law from court scrutiny.

Too simplistic, in my opinion. There are several reasons, but my opposition to that can be described in two.

First, our national history is full of egregious abuses of human rights. Think how we interned the Japanese and Italians during World War II. How Duplessis mercilessly (and totally unrepentant) persecuted Jehovah's Witnesses and trade union members. How Ontario tried to culturally genocide the francophone population of that province during World War I. And so forth.

Of course, there was no Charter of Rights at that time. The only thing that felled Duplessis, in his case, was the courts ruling he violated the rule of law - that he placed himself above the law. The other items were also rectified, but only at the cost of great embarrassment.

If the Charter of Rights had existed, all the actions above could have been "immunized" by the notwithstanding clause, and our country would have eventually become a pariah in terms of human rights. We don't want to set what would be a very dangerous precedent.

Second, a lot of the proponents of notwithstanding mistakenly believe that it is a permanent fix. It is not. It has a five year sunset clause. Which means we'd be kicking the can down the road. And given just how many people are suffering with no prospect at all of recovery, it's almost cruel that we're telling them that for the sake of expediency they can't exercise the one right able-bodied people have.

We really do need to proceed with caution on this one. But as I've mentioned before, when the rape shield law was struck down more than twenty years ago (as the Court determined it to be "void for vagueness") many women's groups advocated using the notwithstanding clause. Instead, the government took the opportunity to make the law stronger, not weaker. Every single clause of the reformed law passed muster.

Of course, we're dealing with a life and death issue here, but if we consider best practices from national and sub-national jurisdictions that have reformed their laws, we may be able to come up with something that on the one hand ensures the dignity of those who want to die when palliative care, while on the other hand guards against being bullied to commit suicide when it is not medically appropriate. And of course, we can't forget that the near unanimity of physicians will refuse to engage in such a practice, citing the ancient Hippocratic oath to "first do no harm" as well as the modern oath where doctors swear they "will not play God." In that case, what other professionals would be able to take part, and what immunities would they have if something goes wrong?

No easy answers to all that, to be sure. I don't know how to begin to make suggestions.

That said, we don't have much time. We need to get some answers as soon as possible, and hopefully with the widest possible consensus in Parliament. But using the hammer that the law is legal even though it is not legal truly would be "using a sledgehammer to squat a fruit fly".