28 October 2008

Fallacy of the Living Tree

I spent today working on my major paper (in Law and Disability) on the topic of euthanasia of disabled infants and children, and I can't help but feel depressed by the relativism our society has embraced. I've read chilling journal articles that argue infants with disabilities should not live because their lives are not worth living. They are "damaged" and "different" and "not normal." The children's doctors and parents are choosing to "end the suffering" by actively or passively euthanizing these children. That is murder- infanticide, and should be punished to the full extent of the law. Instead, some countries, like the Netherlands, have passed, or are considering passing laws, that allow for children to be euthanized because their lives will be full of pain and suffering. These types of laws generally follow after euthanasia and assisted suicide are legalized.

Thankfully, Canada has not legalized euthanasia or assisted suicide. In the Rodriguez [1993] 3 S.C.R. 519 decision, the Supreme Court, in a 5-4 decision, denied the right to assisted suicide to Sue Rodriguez. The majority's main concern was the public policy issues it raised, and the slippery slope arguments. However, that was 15 years ago. The composition of the court has changed, and I fear that if the right test case was brought before the court, that decision would be reversed, and euthanasia and assisted suicide in Canada would be legalized. Jocelyn Downey, the Canada Research Chair on Health Law, has stated publicly that she is looking for the next Rodriguez to attempt to overturn the criminal code provisions against assisted suicide.

This brings me to the point of this entry. I find it incredibly frustrating that once an issue is decided, our legal system allows it to be continually looked at, and the Supreme Court has the power to overturn previous decisions on essentially a whim. What gives them that power? Our constitution apparently. The court claims they have the right to interpret the laws passed by our elected Parliament. This is to prevent antiquated laws, which violated modern social mores and norms, from holding Canada back. This is referred to as the living tree doctrine, and the court uses it regularly to overturn the common law, and laws crafted by Parliament. The idea is that the constitution should be read in a purposive way, allowing it to change with the times.

This means that no matter how many times an issue comes before the court, it is always open to them to redefine the issue so it fits in with what they see as the modern understanding. So, notwithstanding that precedent set in Rodriguez, a Supreme Court today could rule in the opposite direction. No matter how many precedents there are, the court is free to overturn the current law. Can anyone say relativism??? It also depresses me. We can work hard to prevent the legalization of euthanasia and assisted suicide in case after case, but even if we defeat it 100 times, the 101st time, it's open to the court to look at the constitutional question and say we should use the living tree doctrine.

And yet, even if that's true, we have a duty to fight the good fight in every case, and to put forward the best possible argument no matter what, because if nothing else, history shows us that once something becomes legal, it becomes even harder to root out. Funny how the court never uses the living tree doctrine for then.

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