17 Feb

I was catching up reading LinkedIn posts a few weeks back when I saw a colleague’s post that referenced the following quote from Picasso “The meaning of life is to find your gift. The purpose of life is to give it away.” This is an intriguing answer to one of the most challenging questions for humanity that has been explored over the ages.

Sometimes the meaning of life is explored in a comical or satirical fashion such as in the classic Monty Python film of the same name. Similarly, Douglas Adam’s “A Hitch Hiker’s Guide to the Galaxy” has a super computer posit the answer as 42 as if there can possibly be one universally knowable answer that applies to everyone. Later, commentators tried enthusiastically to establish that there was some rational basis for such a concrete answer but Mr. Adams always denied it. I suspect he was trying to demonstrate the absurdity of there being one answer for all persons.

Generally it is left to matters of faith and philosophy to try to define the meaning of life. Politics, in democratic societies, tries to stay relatively neutral and provide a general path for all so that each can find their individual way in the world. However, constitutional protections such as the right to life in the Canadian Charter of Rights is arguably not neutral and can be seen to take away some individual measure of control a person has to define the meaning of their life including managing their personal process of dying and death.

I must confess that I have never fully understood the need to include a right to life. It is a very loaded statement with layers of value judgments included in it. Canada has a comprehensive Criminal Code including provisions prohibiting murder. Enshrining a right to life in the Constitution seems redundant and is how you end up with really ugly legal debates about abortion and access to physician-assisted dying which are both a profoundly personal matter. Although, if the whole of section 7 of the Charter is read, you see that there is moderating language.

Section 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.

It’s the last bit that tends to be overlooked. The right to life is not absolute and the Charter puts limits on the ability of the government to deprive a person of life, liberty and security. I have never interpreted this section as taking away a person’s right to manage their own dying process.

Maybe the right to life in the Charter is not intended as a universal absolute like the answer 42. After all, it is an individual right and must be taken in the context of the overall provisions of the Charter as stated. This is not exactly the logic employed by the Supreme Court of Canada in its recent decision in the Carter v. Canada (Attorney General) case but they did find the Criminal Code section that otherwise prohibited physician-assisted suicide infringed section 7 of the Charter as was not saved by section 1. The decision can be viewed at http://www.canlii.org/en/ca/scc/doc/2015/2015scc5/2015scc5.html .

While the decision has been welcomed by many as a step in the right direction, there are still critics of the idea that people should be able to choose their own end. More specifically, to quote the SCC, “….sections 241(b) 14 of the Criminal Code are void insofar as they prohibit physician assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition”. An article in the Waterloo Region Record referred to the decision as letting the “genie out of the bottle” suggesting that havoc may soon follow, at least if the government does not enact appropriate legislation to constraint the freedom given to individuals by the ruling.

The SCC ruling hardly suggests a free-for-all, but providing some legislative guidelines may well be a good idea, assuming it does not render the option meaningless. No one is being forced to select “death with dignity” as an option. Let’s be honest. Even referring to the process as “physician-assisted suicide or death” contains value judgments and negative connotations. To truly be respectful, we need should employ more neutral language.

To those who say vulnerable people will be exploited, I suggest they look at the website for Dignitas at www.dignitas.ch . There are detailed steps in place to ensure assisted dying is the last option not the first.

To persons who say there should be better home care, palliative care, etc., I agree quite strongly based on personal experience and that of my clients. Our current system needs considerable improvement but that is not the whole answer. Knowing that if the situation becomes absolutely too much to bear, there are further options as part of the continuum of life and death can relieve an enormous amount of stress and even prolong life somewhat. Recent news articles have illustrated that refusing to provide access to assisted dying actually shortens some people’s lives because they are afraid to wait until they cannot do things themselves.

Others say anyone who wants assisted dying is a coward that should just asphyxiate themselves in their car or a similarly distasteful and undignified manner of dying. My answer is to direct these people back to the Charter which says we all have the freedom of conscience and security of the person. How is it within the principles of fundamental justice to force someone to die alone in their car days, weeks or months before it is necessary?

As someone who has practised estate law for nearly 20 years, I have had many conversations with people about their personal views on life, death and dying. While there are common themes, one thing that stands out for me is that each person has a deeply held sense of what life means to them, especially quality of life and individual dignity, and that dying and death are part of an overall process that is not completely separate from life.

Even with this common view, clients do not all choose to provide the same direction in their powers of attorney. It is, after all, their life and their death. Therefore, it should be their right to decide what it all means to them and how they should be allowed to exit this world in a dignified and respectful manner.
Join me for the next instalments in this series.

Part 3 – Guess who’s coming to dinner?
Part 4 – Big Brother – not the reality show