Biopower, juridical power and the afterlife of rights: Medical assistance in dying and the Supreme Court of Canada

2020 ◽  
pp. 136248062092832 ◽  
Author(s):  
Diana Young

This article considers how different modalities of power emerge in medical assistance in dying (MAID) cases, particularly with respect to the Supreme Court of Canada’s decision in Carter v. Canada (A.G.) [2015]. While juridical rationalities cast the issue of MAID in terms of individual rights, Carter and subsequent legislation distinguishes MAID from assisted suicide through the creation of a regulatory scheme, so that individuals seeking MAID continue to be governed by medical power. This may seem to confirm arguments that the image of subjectivity evoked by juridical discourses simply results in the reinforcement of existing power relations. However, this article argues that it is the very regulatory scheme governing MAID that provides points of resistance, giving the individual opportunities to challenge medical power in ways that may destabilize power relations.

2001 ◽  
Vol 10 (2) ◽  
pp. 147-170 ◽  
Author(s):  
Joane Martel

After her intense battle for the decriminalization of assisted suicide in the Supreme Court of Canada, Sue Rodriguez committed suicide with medical assistance in 1994. Following her suicide, government and law representatives remained silent and no criminal charges were ever brought against the person(s) who presumably assisted Ms Rodriguez in her death. This apparent non-intervention of criminal law is examined in view of the useful role that the Rodriguez event may have played in a possible shift in the dominant morality. It is argued that the Rodriguez assisted suicide may have been a useful 'crime' (in the Durkheimian sense) in that it brought to the fore the possibility that social conditions - which made the 'crime' possible - may no longer be in harmony with conventional morality. Similarly to Socrates' crime, the Rodriguez case can be seen as an anticipation of a new morality. It can be analysed as a prelude to alterations, as directly preparing the way for changes in the dominant morality. The role of criminal law as a preferred mode of moral regulation is also examined in relation to the moral demands and expectations that arose during as well as after the judicial saga.


2020 ◽  
Vol 29 (3) ◽  
pp. 361-368
Author(s):  
ALISTER BROWNE ◽  
J.S. RUSSELL

AbstractIn 2015, the Supreme Court of Canada struck down the criminal law prohibiting physician assisted death in Canada. In 2016, Parliament passed legislation to allow what it called ‘medical assistance in dying (MAID).’ The authors first describe the arguments the Court used to strike down the law, and then argue that MAID as legalized in Bill C-14 is based on principles that are incompatible with a free and democratic society, prohibits assistance in dying that should be permitted, and makes access to medically-assisted death unnecessarily difficult. They then propose a version of MAID legislation (‘Ideal MAID’) that gives proponents and opponents of MAID everything they can legitimately want, contend that it is the only way to legalize MAID that is compatible with a free and democratic society, and conclude that it is the way to legalize MAID in Canada and other similarly free and democratic societies.


2018 ◽  
Author(s):  
Rose M. Carter, Q.C. ◽  
Brandyn Rodgerson

In 2016, the Supreme Court of Canada struck down the laws criminalizing medical assistance in dying (MAID) in Carter v. Canada (Attorney General). In this article, the authors discuss the historical prohibition on MAID in Canada, the important change in the law represented by Carter, and Bill C-14, the federal government’s legislative response to the Supreme Court’s verdict. The authors explain the new MAID regime created by Bill C-14 and discuss the various issues raised by the new legislation, including the possibly unconstitutional exclusion of patients not suffering from terminal conditions, problems of certainty in determining when death is “reasonably foreseeable,” problems related to patients’ mental capacity, and the need for effective data collection.


2020 ◽  
Vol 46 (6) ◽  
pp. 399-404 ◽  
Author(s):  
Harprit Kaur Singh ◽  
Mary Ellen Macdonald ◽  
Franco A Carnevale

Medical assistance in dying (MAID) legislation in Canada followed much deliberation after the Supreme Court of Canada’s ruling in Carter v. Canada. Included in this deliberation was the Special Joint Committee on Physician Assisted Dying’s recommendation to extend MAID legislation beyond the inclusion of adults to mature minors. Children's agency is a construct advanced within childhood studies literature which entails eliciting children’s voices in order to recognise children as active participants in constructing their own childhoods. Using this framework, we consider the possible extension of MAID legislation to most minors. We highlight important questions regarding how insights from children’s voices could be mobilised in the life or death context of MAID. We conclude that children’s voices have the potential to help determine their eligibility for MAID; however, incorporating children's voices in the context of MAID requires careful consideration due to the complexity of voice.


1991 ◽  
Vol 24 (2) ◽  
pp. 289-307 ◽  
Author(s):  
Andrew D. Heard

AbstractA traditional focus on the collective, institutional operation of the Supreme Court of Canada has obscured the practical impact on the Charter of Rights of the personal views held by the individual members of the Court. A study of all the Charter cases decided by the Supreme Court from 1983 to 1989 reveals a profound divergence of opinions within the Court. The differences are seen not only in each judge's overall support for Charter claims but also in the patterns of agreement between bilateral pairings of judges who have heard the same cases. The use of subsets of judges to sit on panels to hear Charter cases has meant that both the outcome of Charter cases and the content of our rights have depended to a large extent upon which judges happened to sit on the panels that heard the cases.


2005 ◽  
Vol 27 (4) ◽  
pp. 965-982
Author(s):  
Bernard Auger

In determining whether legislation permitting search and seizure properly meets the requirements of section 8 of the Canadian Charter of Rights and Freedoms, the courts have been obliged to balance the right of the individual to be secure against unreasonable search and seizure with the right of the state to ensure compliance with the law. In Hunter v. Southam, the Supreme Court of Canada established the minimum criteria of reasonable search and seizure for the purposes of section 8. The liberal approach adopted by the Supreme Court raises an important question : Should the same criteria apply to administrative statutes empowering bodies to conduct inquiries and inspections ? The author compares section 8 of the Charter with the American 4th Amendment, examining the requirement for search warrants in the light of Canadian cases. He then examines and discusses the case law concerning the applicability of section 8 to statutory provisions relating to the production of documents and the standard of reasonableness that should apply to these situations.


1969 ◽  
pp. 5
Author(s):  
D. H. Clark

The Supreme Court of Canada's contribution to the jurisprudence of administra tive law has been weak and fitful, erratic and lacking in attention to the principles of its own previous decisions. Failure to articulate points of distinction between its decisions has led to uncertainty in the law. The speaker suggested that the insufficiency of the Court's reasoning and the inadequacy of its citation might be reduced if judgments were more often delivered by more members of the Court thus increasing the individual research and writing of the Court so that its earlier fcmons would be kept in view and the case law developed more coherently. Furthermore, the Court should foUow the House of Lords in not considering itself bound by ds own decisions. The speaker regretted the Court's tendency to take mechanically conceptualise approach to substantive administrative law issues- if Canadian courts are to keep pace with those of other jurisdictions, the Supreme Court of Canada cannot continue to use outworn mumbo-jumbo as substitute for identifyltZtJ «»*"*»* societal interests that are the stuff of /hefPe?kfr aho discussed and compared the contributions of the House of Lords and of the Judicial Committee of the Privy Council. Although it has fewer members the House of Lords has more dissenters in administrative law decisions than the Supreme Court of Canada, (whereas the Privy Council until 1966 could not have dissent). While the S.C.C. has been inconsistent and weak, the Privy Council has been consistent and weak. Although there have been occasional achievements, between 1951 and 1971 the Privy Council rendered series of regressive decisions that impaired coherent development of the administrative law in England and in the Commonwealth. ReidZhh^ i*' f" H0USe °f Lof* under the influenc* of the late Lord h^'^nuJf has enjoyed as most creative °n TegreSSiVe period inPrivy relation Council to public decisions> law si™ However *• earlyhaknZd 1960's mnnt rxiicc ft ££Icrt has*eenperfo


BMJ Open ◽  
2019 ◽  
Vol 9 (4) ◽  
pp. e020369 ◽  
Author(s):  
Ellen T Crumley ◽  
Caroline Sheppard ◽  
Chantelle Bowden ◽  
Gregg Nelson

ObjectiveTo examine how Canadian newspapers portrayed physicians’ role and medical assistance in dying (MAiD).DesignQualitative textual analysis.SettingOnline and print articles from Canadian French and English newspapers.Participants813 newspaper articles published from 1972 to 2016.ResultsKey Canadian events defined five eras. From 1972 to 1990, newspapers portrayed physician’s MAiD role as a social issue by reporting supportive public opinion polls and revealing it was already occurring in secret. From 1991 to 1995, newspapers discussed legal aspects of physicians’ MAiD role including Rodriguez’ Supreme Court of Canada appeal and Federal government Bills. From 1996 to 2004, journalists discussed professional aspects of physicians’ MAiD role and the growing split between palliative care and physicians who supported MAiD. They also reported on court cases against Canadian physicians, Dr Kevorkian and suffering patients who could not receive MAiD. From 2005 to 2013, newspapers described political aspects including the tabling of MAiD legislation to change physicians’ role. Lastly, from 2014 to 2016, newspapers again portrayed legal aspects of physicians’ role as the Supreme Court of Canada was anticipated to legalise MAiD and the Québec government passed its own legislation. Remarkably, newspapers kept attention to MAiD over 44 years before it became legal. Articles generally reflected Canadians’ acceptance of MAiD and physicians were typically portrayed as opposing it, but not all did.ConclusionsNewspaper portrayals of physicians’ MAiD role discussed public opinion, politicians’ activities and professional and legal aspects. Portrayals followed the issue-attention cycle through three of five stages: 1) preproblem, 2) alarmed discovery and euphoric enthusiasm and 3) realising the cost of significant progress.


2001 ◽  
Vol 34 (2) ◽  
pp. 377-399 ◽  
Author(s):  
C. L. Ostberg ◽  
Matthew E. Wetstein ◽  
Craig R. Ducat

Policy convergence theory suggests that political leaders of societies will often emulate policy solutions that work in other settings. Yet political leaders can also reject policy alternatives, leading to policy divergence. This study explores the extent to which policy convergence (and/or divergence) takes place in the legal setting of citation practices by the Supreme Court of Canada. The authors examine the Court's practice of citing authorities from other countries, particularly the United States. The findings echo earlier works that have found increasing citation of US case law since the adoption of the Canadian Charter of Rights and Freedoms in 1982. The justices of the Canadian Supreme Court continue to devote considerable attention to the legal doctrines of other countries' courts, particularly when they are confronted with Charter disputes. Thus, convergence theory gets some qualified support when applied to the Canadian Supreme Court's citation practices. The authors provide several complementary explanations for this evidence of policy emulation, suggesting that it stems from the individual attitudes of justices, from the litigation strategies pursued by groups and from broader societal values that the justices adhere to in their rulings. As such, foreign citation patterns of justices on the Supreme Court of Canada should not only be of interest to public law scholars, but to political scientists generally.La théorie sur la convergence des politiques soutient que les dirigeants des sociétés imitent souvent les solutions politiques qui ont fait leur preuve dans d'autres contextes. Les dirigeants peuvent également, cependant, rejeter les alternatives politiques menant à des divergences. Cette étude examine la portée de la convergence (ou des divergences) des politiques dans le cadre des pratiques de citation de la Cour suprême du Canada, lorsque celles-ci concernent les autorités de d'autres pays, les États-Unis en particulier. Ses conclusions rejoignent celles de travaux antérieurs qui ont constaté une augmentation des citations des lois américaines depuis l'adoption de la Charte canadienne des droits et libertés, en l982. Les juges de la Cour Suprême du Canada continuent d'accorder une attention importante aux doctrines légales des cours des autres pays, en particulier lorsqu'ils sont confrontés à des contestations de la Charte. Donc la théorie de la convergence est confirmée dans une certaine mesure par les pratiques de citation de la Cour suprême du Canada. L'article fournit plusieurs explications complémentaires de cette politique d'imitation, suggérant qu'elle origine des attitudes individuelles des juges, des stratégies de contestation utilisées par les groupes et, plus largement, des valeurs sociétales auxquelles se référent les juges dans leurs décisions. Par conséquent, les patterns de citation des jurisprudences étrangères de la Cour suprême du Canada devraient intéressé, non seulement les chercheurs en droit public, mais les spécialistes de la science politique en général.


2015 ◽  
Vol 74 (2) ◽  
pp. 191-194 ◽  
Author(s):  
Stephanie Palmer

IN a groundbreaking decision, the Supreme Court of Canada in Carter v Canada (Attorney General) 2015 SCC 5 has declared the criminal law measures prohibiting the provision of assistance in dying unconstitutional. In doing so, the Supreme Court unanimously overruled its previous decision (Rodriguez v British Columbia (Attorney-General) [1993] 3 S.C.R. 519) upholding the blanket prohibition on assisted suicide.


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