Canadian Ban on Assisted Suicide “Unconstitutional”

A Court in British Columbia has ruled that the law against assisted suicide (AS) in Canada cannot be reconciled with the country’s Charter of Rights and Freedoms – notably item 7 –

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

– and item 15 –

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The full ruling is available here (H/T to Ophelia Benson for the link): it’s long, and I’ve not had a chance to read it, so contributions in the comments below this post would be welcome.  From what I can tell, the decision is still liable to go to appeal, so it might yet turn out to be a false start; but it’s highly notable nonetheless.

Though I’ve made no bones here about my broad support for the legalisation of assisted dying, both as assisted suicide and euthanasia, I do wonder if in this case some of the judge’s reasoning may be a bit iffy.  Not all of it – one of the things the judge, Lynn Smith, said seems to be quite powerful: that having a ban on assisted suicide may force people to kill themselves more prematurely than they would ideally want, because they have to be sure that they still have the physical ability.  This seems to be a quite legitimate worry that the laws that ban AS may be, in some ways, counterproductive, and might end up generating more planned deaths than there would be otherwise (at least in the absence of legalised euthanasia on request).  That’s quite plausibly correct.

But in other aspects, I have my suspicions.  There’s a couple of things that spring to mind here that I think demand a bit of scrutiny.  First, does the duty to protect equality indicate a need to allow assistance?  Second, does the ban really impinge on the right to life?

The answer to the second question is, it seems to me, fairly straightforward: it doesn’t.  The right to life is a right not to have that life taken – at least without permission.  But the right not to have one’s life taken without permission does not imply that there’s a right to have it taken with permission, or as part of a joint project.  The law could coherently give a person a right not to have their life taken without having to admit that.  Even if you can relinquish your right to life, it doesn’t follow that anyone else has a right to act based on that relinquishment.  (You might, of course, refuse life-saving treatment and expect to have that refusal respected – but here we’d be talking about another’s duty not to force you to live and duty not to act in some way;  we wouldn’t be talking about their having a right to help you die.  A refusal of treatment imposes on others a negative duty not to treat, not a positive right not to – and certainly not a positive right to end your life.)

Neither, as far as I can see, does an appeal to equality hold much water.  per Smith, at paragraph 1077,

I find the conclusion inescapable that the Criminal Code provisions regarding assisted suicide have a more burdensome effect on persons with physical disabilities than on others.  I am satisfied that the absolute prohibition against assisted suicide creates a distinction based on the enumerated ground of physical disability.

This might very well be open to challenge.  I’m not at all familiar with Canadian law, but a lot would seem to hinge on whether it’s the law that creates burdens, and on whether you think it’s the place of the law always to lift burdens that brute bad luck has imposed – and, subsequently, how the law should lift them.

There seems to be plenty of room to argue that the law does not itself create any burdens, and does not distribute them unfairly.  Everyone has the same right to end their own life, and everyone has the same right not to have it ended.  Formally, at least, there is at least an opening there to deny that there’s an equality problem that’s based in the law.

What, then, of the idea that the law has a duty to rectify inequality when it arises in at least some cases?  Well, fair enough: but it doesn’t follow from that that the law ought to make assisted dying a possibility.  It could respond, say, by pouring money into research that would halt or reverse the effects of disabling illness.  Such research might mean that we end up living in a world in which more people have, or are restored to, a life in which suicide is possible – although that may also mean fewer people wanting to die, since the thing that made their lives miserable would be mitigated or eliminated; that would satisfy the equality criterion.

And there’s a bit more to say.

In the UK, for example, the Suicide Act made attempted self-killing legal, but that didn’t indicate legal approval of suicide.  Rather, the recognition was that having it illegal was a silly way to get people not to kill themselves.  Since the law in the UK does still not approve of suicide, it’d be coherent for it to refuse to make suicide easier for some.  (I made this point in a bit more detail in my critique of the Commission for Assisted Dying’s recent report.)

Again: I don’t know what the Canadian law on suicide says in particular; but the point translates, and is that, even if a legal system does allow suicide, and even if we think that it ought to treat all people equally, it doesn’t follow that it has to make suicide for any particular people particularly easy, or more easy than it was hitherto.

So, this looks to be a symbolically important ruling.  Whether it’s morally important is not clear, because legal rulings don’t make morality.  Whether it’s legally strong is something only time will tell.  And, anyway: all judges can do is work within the framework of existing law.  If a judge’s ruling is politically unpopular, irrespective of its moral weight, there’s still every possibility for legislation to be passed that makes it irrelevant.

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