The Carter decision: Of Power and Permission

Carter and the right to end one’s life

Last week the British Columbia Court of Appeal decided to allow the Attorney General’s appeal to the constitutional challenge of the assisted suicide prohibition: the Carter case.[1] This case featured two persons named Gloria Taylor and Lee Carter. Both suffered from intractable and progressive diseases, and wished to have the option of physician assisted suicide when their life would become intolerable (they both passed away before the appeal was rendered). However, s 241(b) of the Criminal Code makes aiding or abetting a person to commit suicide a crime.[2] Ms. Carter and Taylor challenged the constitutionality of the section alleging a violation of their right to life, liberty and security of the person, and of their right to equality.[3] One of the major hurdles they faced was that a similar issue involving the same section of the Code was challenged on similar grounds and had been decided by the Supreme Court of Canada in the past.[4] In Rodriguez, the plaintiff lost her appeal to the Supreme Court by a close 5 to 4 vote. Nevertheless, the trial judge, Justice Smith, found that she was not bound by the Supreme Court ruling because this case raised three new grounds: (1) the right to life was not at stake in Rodriguez; (2) two principle of fundamental justice did not exist at the time of Rodriguez, overbroadness and gross disproportionality; (3) the majority did not consider s 15 (equality) in its entirety in addition to the fact that recent Supreme Court decisions changed the applicable test.[5] She found in the plaintiffs’ favour and declared the section unconstitutional with a grace period of one year for the government.

Sadly, the majority of the Court of Appeal through the pen of Justice Newbury (Saunders J.A. concurring) found that the court was bound by Rodriguez and allowed the Attorney General’s appeal. Only the Supreme Court can reverse its decision they found. Chief Justice Finch, however, found otherwise in a strong dissent. He found that although the trial judge erred in her analyses of s 15, she was correct on her distinction of Rodriguez based on s 7. Both Finch C.J.B.C. and Smith J. found that an absolute prohibition on assisted suicide was both overbroad (covers actions it should not considering life, liberty and security of the person) and grossly disproportionate to the goal of s 241 CrC (protecting vulnerable people). They found that other options that both ensured the protection of vulnerable people and permitted people with terminal disease to end their life and suffering with dignity existed. Regardless of the Court of Appeal outcome, this case is bound to end up in front of the Supreme Court in the near future.

Permissive rights and safeguarding power

Although I am all for the right to end one’s life in a humane manner, the outcome of this case is not necessarily what I found interesting. What attracted my attention was related to my current bedside reading: Slavoj Zizek, First as tragedy, then as farce (New-York: Verso, 2009). In this book, Zizek explores, amongst other things, the relation of “permission” and power. In summary, current dominant power (the capitalist social-democrat white paternal State) has mastered the tactic of giving permissive rights to give the illusion of equality and/or social progress. These permissive rights are rights that appear to cede something to a minority/oppressed group without actually changing the status quo balance of power (meaning that the dominant class does not actually have to give up some of its power). Carter is such a case, along with same-sex marriage, employment discrimination, and other cases, where the State appears to be on the course of giving a right to marginalized people, after a fight of course to give the appearance of great victory for the plaintiffs at the end. But if the plaintiffs win in Carter, we will not actually be closer to equality in any substantial way. Yes assisted suicide would be available, but this does not address the question of the adequacy of healthcare, access to healthcare, elders’ living condition and poverty, or any other serious issues that impact every day millions of people with terminal illness or similar conditions.

The same thing can be said of the same-sex marriage case. We now have access to the institution of marriage (an institution whose continuous existence perplexes me, but that’s for another post), but LGBTQ substantial equality has not drastically changed. Yes this case potentially helped “normalized” homosexual relationships, but it has not stopped discrimination, bullying, poverty and suicide rate. Money is needed to address these serious problems, and in our society money is power. Allowing gay people to marry did not deprive our government of any power, but reforming institutions and diverting large amount of funds would and therefore is not done. But the state can still claim that it is progressive as LGBTQ people can marry! Because marriage is clearly the first priority of the lesbian woman of colour living below the poverty level.

A clear historical example of this is the fact that although we (the large Nation we) were unable to allocate sufficient funds to fight the AIDS crisis and the food security crises alleging insufficiency of funds, we had no problem giving hundreds of billions of dollar at a fast speed without much debate to Banks and other large corporations following the 2008 financial crisis. Let us not kid ourselves, these small freedoms (in the larger scheme of things, I do not wish to undermine their importance for individuals) are but the crumbs of a small piece of the equality pie. The dominant class clearly has the mean to address social justice issues but simply refuses to do so as this would mean undermining their position. As we, the various underprivileged groups, fight with sweat and blood for a modicum of dignity, the “elite” is still pillaging our human and natural resources for their own profit with impunity. If Rodriguez is reversed, I don’t know if I will be able to cheer …

 


[1] Carter v Canada (Attorney General), 2013 BCCA 435. See Carter v Canada (Attorney General), 2012 BCSC 886 for BC Supreme Court decision.

[2] S 241 of the Criminal Code, RSC 1985, c C-46.

[3] Ss 7 & 15(1) of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[4] Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519.

[5] A violation of a principle of fundamental justice is needed in order to have a violation of s 7 (right to life, liberty and security of the person). Only arbitrariness and unfairness were considered in Rodriguez.

2 thoughts on “The Carter decision: Of Power and Permission

  1. Pingback: The Carter decision: Of Power and Permission | jurisblogger

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