Margaret Somerville is founding director of the Centre for Medicine, Ethics and Law at McGill University.
Prime Minister Justin Trudeau seems to be fond of whipping. He once criticized the Conservatives for whipping out Canada's CF-18s in the Middle East, and the jets have since been whipped back home. Earlier this month, Liberal House Leader Dominic LeBlanc said coming legislation on doctor-assisted dying would be a whipped vote, but last week he backtracked, saying a decision on whether to whip the vote (that is, force all Liberal MPs to toe the party line) will not be made until after the law is drafted.
Mr. LeBlanc initially used the "Charter cloak" – the need to vote "to uphold Charter rights" – to defend a whipped vote and shift responsibility for legalizing euthanasia to the Supreme Court of Canada, with Parliament's role simply to endorse the court's decision of last year. "The Supreme Court has made the decision. It's our role to support that," Liberal Whip Andrew Leslie said last week. But it appears that after some Liberal MPs questioned whether it is a true Charter of Rights and Freedoms issue or rather one of conscience, the decision to whip the vote was postponed.
Exploring the nebulous difference between a Charter issue and one of conscience could occupy law students indefinitely, especially because freedom of conscience is a Charter right. But apart from the fact that the Supreme Court expressly left it, within broad and undefined guidelines, largely to Parliament to decide what the legislation should be, what about MPs's Charter rights to freedom of conscience?
We should keep in mind that just as respect for physicians' freedom of conscience is necessary, not only to respect them but also to protect patients and can be the last such protection against doing them harm or other serious wrongdoing, so, too, is respect for MPs' freedom of conscience necessary, not only to respect them, but also to protect Canadians and can be the last such protection against doing them harm or other serious wrongdoing.
The all-encompassing Charter cloak is another obfuscation used to justify euthanasia. The Supreme Court decided that the Charter prohibits an absolute ban on assisted suicide, but explicitly left it up to Parliament – that is, every individual MP – to decide who can have access and under what conditions. This is a very broad scope for decision-making.
This "hide behind the Charter" strategy resonates with an "obedience to higher orders" defence to wrongdoing ("it wasn't my decision, I was forced to do it"), which the law has never accepted as valid.
And was the initial order that MPs must vote for legislation that they haven't seen even ethical? What if the legislation were to follow that in the Netherlands, and allow euthanasia of newborns with disabilities? What about people with dementia who are unable to consent? Or what if it permits consent from surrogate decision-makers? Or allows the taking of organs for transplantation from euthanized people, as in Belgium? Or doesn't require that the person be suffering a terminal illness? Or could be used by mentally ill people who are not physically ill?
Unlike some other issues with a yes/no answer, such as raising taxes, doctor-assisted dying is a complex issue. Even MPs who do not see it as unethical are not willing to allow wide access to it with few safeguard mechanisms.
If it turns out that the vote on the coming legislation is whipped, it might be too much to hope that MPs will follow their consciences. But if they don't, what does that say about the people governing us? And what about their obligations to their constituents in a representative democracy on a matter of such profundity as permitting the intentional infliction of death on another person?
If the vote is whipped, it will be yet another example of the totalitarian utopianism of "progressive values" advocates, who will not tolerate any dissent. In this case, it translates to a claim that "we are only doing good, avoiding cruelty and being kind by allowing physicians to put suffering people out of their misery and thereby making our society a more compassionate one." As has often been said, nowhere are human rights more threatened than when we act purporting to do only good. The good we hope for blinds us to the risks and harms.