Carter and the Politics of Certainty

Jonas-Sébastien Beaudry problematizes the desire for “certainty” that has influenced, and no doubt will continue to influence, the debate on physician-assisted dying.

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In Carter v. Canada (Attorney General), the Supreme Court of Canada declared the Criminal Code provisions that make it illegal to aid or abet a person in committing suicide invalid.

The Supreme Court held that the Trial Judge at the BC Supreme Court made no error in concluding that “the evidence showed that a system with properly designed and administered safeguards offered a less restrictive means of reaching the government’s objective” – described in Rodriguez v. B.C. (Attorney General) as “the protection of the vulnerable who might be induced in moments of weakness to commit suicide.” As a result, the Supreme Court concluded that the Criminal Code provisions unjustifiably violated the rights to life, liberty and security of competent adults seeking assistance to end their intolerable suffering caused by a “grievous and irremediable medical condition”.

In this case, two legitimate opposing claims needed to be balanced. The appellants sought a dignified death for competent adults seeking physician-assisted dying. Their opponents sought to protect vulnerable populations from external/internalized coercion or undue influence in decision-making about end-of-life care. As such, this case essentially rested on an empirical question: Can administrative safeguards protect vulnerable populations, such as persons with disabilities and elderly persons, from abuse and error?

Interior_of_the_old_Supreme_Court_of_Canada

The Supreme Court’s answer to this question was “yes”. It should have been: “We don’t know (because there simply is no definitive way to know that disabled and elderly persons will be safe once assistance in dying is legalized, even with safeguards), but we have good political reasons for giving it a try.” These political reasons include the need to balance the basic rights of all citizens.

What I wish to ask is whether and how much these reasons were guided by the fact that there is definitive proof that keeping physician-assisted dying illegal will definitively deprive some people of a dignified death.

While there is certainly comfort in only acting on things that we know definitively (that is, things that we know with 100% certainty), it is worth noting that there can be things that we know with less than 100% certainty that should nonetheless weigh heavily in our decision-making. Indeed, it does not follow from the fact that we are 100% certain of an outcome that this outcome should trump all other factors guiding a decision.

Some disability groups and scholars claimed that physician-assisted dying should not be legalized “[u]ntil it can be convincingly demonstrated” that vulnerable Canadians are not at risk of coercion. Was this too much to demand?

Just as some may have given too much weight to the fact that they knew definitively that legalizing physician-assisted dying would meet the needs of some competent persons, others may have given too much weight to the fact that a blanket prohibition on physician-assisted dying would make it 100% certain that no vulnerable person would be put to death without his or her free and informed consent.

In the post-Carter era, we can reasonably anticipate that there will be considerable tinkering, experimentation, and some scandals along the way as we try to find a “balanced” approach to physician-assisted dying that will provide the kind of certainty that many hope for. We have not embarked upon this journey knowing definitively that vulnerable persons will be safe – arguments in Carter notwithstanding. Rather, we have embarked upon this journey in an attempt to respond to the (apparently conflicting) basic needs of various citizens. Whatever laws and regulations are introduced, we can reasonably anticipate that some people will be deprived of their preferred death and some people will experience coercion and die sooner than they might have under other circumstances.

The question for us to consider and resolve is where we will draw the sacrificial line. The debate in Carter has been about respecting rights. With the Supreme Court decision, the debate will now be about fine-tuning the sacrificial balance democratically. This bleak view should incite us to be attentive to the ways in which the legal landscape evolves. Seeking definitive certainty on either side of this ongoing debate (by fighting to reestablish or maintain blanket prohibitions or increasingly permissive frameworks regulating suicide) is not nearly as relevant to moral progress as negotiating a middle ground and constantly evaluating the ways in which legal safeguards will fail us, as they statistically must.

Further, at this time it is worth insisting on the fact that the emerging debate about the nature and scope of the legal safeguards is particularly important because the ways in which we think about life, death and dying will evolve as physician-assisted dying becomes legal. We, and the way we relate to the value of life and of controlling death, will change as the practice of physician-assisted dying (and the relevant discourse) progresses. There is no Archimedean point from which to achieve a kind of scientific objectivity on the appropriateness of the legal safeguards once and for all. This is because such appropriateness is not value-neutral.

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Jonas-Sébastien Beaudry is a Post-Doctoral Fellow at the McGill University, Faculty of Law.

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