Is the quest for personal autonomy endangering the lives and liberties of Canadians? Consider the evidence.
In January 1988 the Supreme Court of Canada struck down Section 251 of the Criminal Code regulating abortion. Unlike the US Supreme Court’s earlier Roe v Wade ruling, its decision in R vs. Morgentaler did not claim to enshrine a woman’s right to an abortion. It left considerable leeway to Parliament to enact a new law provided that it took into account the Court’s objections to the old law. The government of Prime Minister Brian Mulroney then set about to rectify the Court’s concern by proposing a new abortion law, C-43, which passed the House of Commons but was defeated on a free vote in the Senate in 1991. Since then no government has had the courage to tackle the abortion issue, with the result that Canada is one of a very few jurisdictions with no abortion law at all.
Last month the Supreme Court ruled that the Criminal Code’s blanket prohibition of assisted suicide is unconstitutional in that it violates section 7 of the Charter of Rights and Freedoms which guarantees everyone “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.” Although a surface reading of section 7 would seem to favour the protection of life, the justices decided that forcing a critically ill person to take her own life while she is still able to do so but before she would prefer is a violation of the autonomy of the person as guaranteed by the Charter. The Court nevertheless suspended its ruling for one year to allow Parliament to craft a law that would address its concerns.
At the centre of our constitutional democracy is the principle of responsible government, which holds that the government of the day is responsible to Parliament and must maintain its confidence to continue to govern. However, since 1982, our governments have been succumbing to the temptation to abdicate their responsibility on controversial issues to the courts.
Why? Abortion and euthanasia are divisive issues that governments are increasingly unwilling to touch for fear of alienating a substantial portion of the electorate. It is easier for them to go before voters and tell them that the courts have tied their hands. This way they can avoid having to assume blame for an unpopular policy, while the courts, being unelected, are under no obligation to defend themselves before the people. This would seem to add up to something approaching irresponsible government in that a highly disputable conception of human autonomy is being read into the Charter by an institution that needn’t answer to voters or to their representatives.
Nearly three years ago Conservative MP Stephen Woodworth tabled a private member’s motion requesting that Parliament reopen the issue of when human life begins. Although the Conservative Party is more tolerant of pro-life MPs in its own caucus than are the other parties in the Commons, Prime Minister Stephen Harper openly opposed the measure. Furthermore, Conservative Party whip Gordon O’Connor expressed incredulity at the motion: “I do not want women to go back to the previous era where some were forced to obtain abortions from illegal and medically dangerous sources.”
Parallels between the two issues are not difficult to find. In both cases, legality is being constructed around fears of what might happen in the absence of freedom of choice. If women are legally limited in their ability to secure an abortion, they may find other more dangerous ways to end their pregnancy. Similarly if the terminally ill are prohibited from securing assistance in ending their own lives, they may attempt suicide before they would otherwise wish to. In short, protecting a person’s presumed autonomy appears to trump a concern for life itself, despite the wording of section 7 of the Charter.
Will the Harper government or its successor have the courage to take up the Court’s challenge and enact a law regulating assisted suicide? If the fate of the abortion issue is any indication, we could end up with a legal vacuum through political inaction. Unless, that is, enough Canadians wake up to the recognition that the quest for autonomy is a fruitless one based on a faulty understanding of human nature. Only then will our lives and liberties be adequately protected against the potentially limitless claims of an unattainable autonomy.
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