Biopower, juridical power and the afterlife of rights: Medical assistance in dying and the Supreme Court of Canada
| Published date | 01 February 2022 |
| DOI | 10.1177/1362480620928329 |
| Date | 01 February 2022 |
| Author | Diana Young |
| Subject Matter | Articles |
https://doi.org/10.1177/1362480620928329
Theoretical Criminology
© The Author(s) 2020
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DOI: 10.1177/1362480620928329
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Biopower, juridical power and
the afterlife of rights: Medical
assistance in dying and the
Supreme Court of Canada
Diana Young
Carleton University, Canada
Abstract
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.
Keywords
Alterity, biopower, Canada, criminal justice, legal reasoning, medical assistance in dying
In this article I consider the decision of the Supreme Court of Canada in Carter v. Canada
(Attorney General) [2015] and how it employed legal discourses with respect to the issue
of medical assistance in dying (MAID). What interests me is not how or under what
Corresponding author:
Diana Young, Department of Law and Legal Studies, Carleton University, 1125 Colonel By Drive, Ottawa,
ON K1S 5B6, Canada.
Email: diana.young@carleton.ca
928329TCR0010.1177/1362480620928329Theoretical CriminologyYoung
research-article2020
Article
2022, Vol. 26(1) 112–131
circumstances assisted dying should be permitted. Instead, I will examine the relation-
ship between biopower and juridical power, in light of some critiques of rights discourses
articulated by contemporary social theorists.
In Society Must Be Defended, Foucault asked if there is a ‘right that is both antidis-
ciplinary and emancipated from the principle of sovereignty?’ (Foucault, 2003b: 40),
suggesting that human rights, as currently constituted, do not offer the possibility of
resisting the effects of power. When activists employ human rights discourses, they not
only reinforce sovereign power, they also reinforce existing concepts of what it means
to be human.
Rather than trying to resolve this dilemma by constructing a broad alternative theory
of rights, I propose instead to look at examples of actual cases that engage juridical
rationalities in order to consider their potential for destabilizing power relations. The
juridical rationalities of the Carter decision, and a few years later Truchon [2019], in
many ways seem to reproduce rather than challenge liberal subjectivities. However,
looking beyond the text we might ask, not what kind of subject is produced by a right in
and of itself, but rather whether the transition from medical to juridical and back to medi-
cal modalities of power has the potential to open new possibilities of subjectivity, by
destabilizing power and, perhaps, ‘bringing individuals and decision centers closer
together’ (Foucault, 2003a: 78). I conclude that possibilities for transformation may lie
not in seeking to free the subject from power, but through the subject’s encounter with
the resistance that power may bring to bear on the desire for death.
In Carter [2015] the Supreme Court reconsidered its decision in Rodriguez v. British
Columbia (AG) [1993] with respect to the general prohibition of assisted suicide con-
tained in sections 14 and 241 the Criminal Code of Canada:
14. No person is entitled to consent to have death inflicted on him, and such consent does not
affect the criminal responsibility of any person by whom death may be inflicted on the person
by whom consent is given.
241. Everyone who
(a) counsels a person to commit suicide, or
(b) aids or abets a person to commit suicide,
Whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for
a term not exceeding fourteen years.
The court accepted the appellants’ argument that these sections, insofar as they pro-
hibited medical assistance in dying to people suffering from serious illness or disability,
violated section 7 of the Canadian Charter of Rights and Freedoms,1 which reads:
‘[e]veryone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.’ Taking
the form of a Charter challenge, the argument for the appellants was necessarily cast in
terms of individual rights acting as a bulwark against the exercise of state power—the
state having a competing interest in preserving life. Tierney (2006) suggests that the
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Young
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