Book Review: Assisted Death: Legal, Social and Ethical Issues After Carter

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

Assisted Death: Legal, Social and Ethical Issues after Carter. Edited by Derek B.M. Ross. Toronto: LexisNexis, 2018. xlii, 544 p. Includes table of cases. ISBN 978-0- 433-49868-1 (softcover) $125.00.

Reviewed by Kim Clarke
Director, Bennett Jones Law Library
University of Calgary
In CLLR 45:2

Considering that Carter, 2015 SCC 5, the SCC’s decision on medical assistance in dying (MAiD), was released in 2015 and that Bill C-14 became law in 2016, it is very surprising that only one book addressing its legal implications has been published. Assisted Death is that book. This collection of essays is the result of a September 2017 symposium hosted by the Christian Legal Fellowship. The symposium had been sponsored by LexisNexis, the publisher of this book.

The essays are arranged in four parts: Carter’s Impact on Canadian Legal Doctrine, Charter Implications for Health Care Professionals and Institutions, the Future of Palliative Care in Canada and Safeguards Moving Forward, and Charter Dialogue and the Constitutionality of Canada’s MAiD Legislation.

The first essay, by American law professor Dr. John Keown, discusses the “flaws” in the SCC’s analysis, including its “failure to understand the key principle of the ‘sanctity of life’ ” (p. 1). This is followed by an essay focussing on the potential impact of Carter’s application of the stare decisis doctrine in Canada (AG) v Bedford, 2013 SCC 72. The author suggests the Bedford–Carter approach to precedent is a “departure from both vertical and horizontal stare decisis” (p. 41), which could result in substantial legal uncertainty. The last essay in Part I critiques the SCC’s statutory interpretation in Carter and finds it lacking. The author accuses the Court of making a section 7 review more “unwieldly and unpredictable” (p. 49) and then proposes a framework for interpreting Criminal Code provisions.

The essays in Part II revolve around Carter’s impact on the Charter’s freedom of conscience and religion provision from both individual and institutional perspectives. In the first paper, the author develops a framework requiring courts to first examine the claim of conscience, followed by an analysis into the nature of the counterclaim intent on overriding conscience to determine if the latter is founded upon a legal right. The second essay explores section 2(a) to determine what the freedom of conscience provision protects and why it was included in the Charter. The next essay, written by the editor, focusses on policies developed by the College of Physicians and Surgeons of Ontario that require physicians to make “effective referrals” to a “non-objecting, available and accessible” doctor (p. 145), even if doing so goes against their conscience. The last essay explores religious hospitals’ pre- and post-Charter rights to oppose the provision of MAiD services.

Part III addresses the social implications of the Carter case. The second essay in this part explores the establishment of a right to palliative care, either in the Canada Health Act or in connection with the MAiD provisions in the Criminal Code. In doing so, the authors consider challenges that could be brought under sections 7 and 15 of the Charter. The final essay examines the autonomy requirement in the MAiD provisions. The author differentiates between deliberative autonomy (wherein individuals have the cognitive capacity to make decisions autonomously) and socially enabled autonomy (whereby the lack of social services and resources limit the choices the individual has). The lack of resources that would allow individuals to live in a hospitable environment may force an individual to elect end of life treatment.

The first essay in Part IV contains an interesting exploration of the dialogue theory, created by Peter Hogg and Allison Bushell to describe the fact that legislative bodies can take some action to bring acts into compliance with the Charter. The author conducts a dialogue theory study of the parliamentary debate surrounding Bill C-14. The last essay examines the laws from other jurisdictions to determine whether MAiD should be broadened to cover mature minors, advance requests, and mental illnesses.

A common feature of all essay collections is the scattershot effect of its contents, and this book definitely suffers from that, possibly because it is essentially a conference proceeding. This is not a book that one would read to gain a general understanding of the MAiD law or how it may apply to a particular situation. Readers would have to know that one of the essays is on a topic that they are interested in.

There is a dearth of finding aids in this book. The most significant failure, in my opinion, is the absence of an index. The reader only has a somewhat expanded table of contents to help identify where topics of interest are discussed. The book contains a table of cases but does not have a table of statutes, which also would have been useful to identify where specific Charter, Criminal Code, and other legislative sections are analyzed.

I am torn regarding whether to recommend this book for purchase. The quality of writing is very high, which supports its recommendation. The hit-or-miss aspect of the contents, however, makes me question the number of readers, other than health law practitioners and students, who would find the book useful. In the end, I recommend that academic libraries purchase Assisted Death, primarily due to the lack of books on the topic.