Carter Part VII: Judicial Dicta on Ethics
judge is largely confined to the issues as defined by the pleadings and to
the evidence presented by the parties.
B1.1 Part VII of the judgement illustrates the difference between the role
of a scholar and the role of a judge: between an investigative and
deliberative process that can be followed by parliamentary subcommittees or
royal commissions and the process followed in a trial conducted on
adversarial principles. As the Christian Legal Fellowship observed, a trial
judge "does not have the benefit of the wide-ranging consultations that are
available to government."263
B1.2 A judge is not a scholar who has the freedom and the obligation to go
beyond evidence that is ready to hand in order to identify all issues raised
by a problem and locate all evidence that may be relevant to resolving it. A
judge is largely confined to the issues as defined by the pleadings and to
the evidence presented by the parties. One of the strengths of judicial
office is this demanding specificity that can bring a bright light to bear
on dark doings, or bring into focus something not readily seen without the
assistance of a judge's lens, be it microscopic or telescopic.
B1.3 However, this restricted focus and dependence on the evidence "as
presented" becomes a handicap when a wide angle lens is needed and the
evidence "as presented" is selected, shaped and limited by the interests and
practical judgement of the parties in conflict. Part VII of the judgement,
in which the judge tries to make sense of the evidence "as presented," seems
to reflect this limitation.
. . .Madam Justice Smith . . . seems to wander through the
evidence, perhaps attempting to synthesize disparate and incomplete
evidentiary materials and arguments provided by the parties in conflict.
B2.1 In Part VII
(pargraphs 161 to 358), Madam Justice Smith proposed to address the question of
whether or not it would ever be ethical - not legal - for a physician to
provide assisted suicide or euthanasia at the request of a competent,
Unfortunately, she did not confine herself to this question, but seems to
have wandered through the evidence, perhaps attempting to synthesize
disparate and incomplete evidentiary materials and arguments provided by the
parties in conflict. Her explanation of the purpose for this exercise
B2.2 The judge asserted that the
question before her was
constitutional, not legal.265 This
implied that a challenged to the constitutionality of the law against
assisted suicide was not a legal question, which seems at least a very
B2.3 In the same breath, the judge said that the
question before her was not ethical.266
If the question before her is not ethical, one may reasonably ask why she
embarked upon a lengthy discussion of ethics.
B2.4 Observing that the realms of ethics, law
and constitutionality "tend to converge even though they do not wholly
the judge expalined
that the law and medical practice are shaped by ethical principles.268
She later noted that legal and constitutional principles are dervied from
and shaped by societal values.269 The explanation was not
germane in the circumstances of the case before her, in which ethical
principles and societal values were either in dispute or in conflict: hence
her references to "the ethical debate."
In any case, the judge stated that she intended to "review the evidence that
the parties provided regarding the ethical debate and end-of-life medical
practices . . . in order to create a record for higher courts and because
this body of evidence and law has some relevance to other issues that are
necessary for me to address."270
B2.6 To this she added, with apparently less
assurance, three further reasons that indicated, in her words, that "the
ethical debate may bear on the issues in this case." (Emphasis
B2.7 The first was that, since the plaintiffs were
seeking physician-assisted suicide and euthanasia, it was important to
determine whether or not at least some physicians believed it would be
ethical to provide the services.272
While this was a reasonable question, the ensuing review of "the ethical
debate" was not required to answer it, since it was obvious from the
plaintiffsâ€™ notice of claim that some physicians held that opinion.
B2.8 The second reason offered was that the plaintiffs
claimed that there was no ethical distinction between permissible forms of
end of life care and assisted suicide/euthanasia, and no ethical distinction
between suicide and assisted suicide.273
The judge having previously declared that the question before her was not
ethical (B2.4) and the that ethics of suicide were not
at issue (VI.2.3),
these claims (and her review of the ethical debate) would seem irrelevant.
B2.9 Finally, the judge referred to plaintiffsâ€™ claim
that the law was invalid if its purpose was "to uphold a particular
religious conception of morality." However, the ruling on this point
identified an entirely different purpose, and, in arriving at that
conclusion, made no reference to this claim.275
The review of the ethical debate for this purpose seems superfluous.
B2.10 Nonetheless, "to create a record for the higher
courts," because the ethical debate had "some relevance" to the points she
had to address, and because of the possibility that it could bear on the
issues, Madame Justice Smith deemed it "worthwhile to review the parameters
of the ethical debate."276
B2.11 It is instructive to compare this
of her purpose of Part VII to her explanation of the purpose of Part VIII,
where she considered evidence from other jurisdictions on the efficacy of
In this section, I will summarize, and make findings
of fact with regard to the extensive evidence that has been tendered with
respect to permissive jurisdictions and their safeguards."277
After outlining how she would approach the subject, she added, "I will
then return to the practical slippery slope questions and set out my
conclusions on those questions, based on the evidence."278
B2.12 This strongly suggests that statements made by
the judge in Part VII cannot be considered on par with findings in Part
The plaintiffs chose to begin with
physician-assisted suicide and
euthanasia, thus avoiding . . . logically prior ethical questions, and
Madam Justice Smith does the same when she expressly accepts this framework
for her analysis.
B3.1 It seems that the judge's opinion that "the ethics of
physician-assisted death are relevant to, although certainly not
determinative of, the assessment of the constitutional issues in this case,"279
originated in the plaintiffs' claim, which was specifically for physician-assisted suicide and euthanasia.
B3.2 However, the law forbade
anyone - not just physicians - from assisting
in suicide or committing consensual homicide. If there was an ethical question central
to constitutional issues, it was the ethics of assisted suicide and
consensual homicide by anyone - not just physicians. Of course, to begin
here would have complicated the case enormously, since it would have been
difficult to avoid questions about how suicide and homicide are consistent
with the high value the law and society assign to human life, be it
described in terms like "the sanctity of life" or "the inviolability
principle" or "fundamental value."
B3.3 The plaintiffs chose to begin with
physician-assisted suicide and
euthanasia,280 thus avoiding these logically prior ethical questions, and
Madam Justice Smith did the same when she expressly accepted this framework
for her analysis.281 Thus, Part VII included one strand of discussion that
addressed a central question identified by the judge: "whether or not it is
ethical for physicians to provide such assistance."
. . . in Part VII, the judge tries to establish a common
standard by searching for ethical consensus.
B4.1 Madam Justice Smith did not acknowledge the first and most obvious
difficulty that has to be faced in answering that question: identifying the
ethical or moral standard to be applied. Since physicians were providing assisted
suicide and therapeutic homicide in Belgium and the Netherlands, it would
seem that either they are acting unethically, or that Canadian physicians
are acting unethically by refusing to do so. Alternatively, a moral or
ethical relativist would likely assert that medical ethics are cultural or
social constructs with no transcendent significance, so that we should
expect that different countries may have different ethics.
B4.2 Here, the law itself is of no assistance. The judge recognizes that
what is ethical or moral may not be legal, and what is legal may not be
moral or ethical,283 a proposition with which St Augustine, St. Thomas Aquinas
and Martin Luther King Jr. (among others) would agree.284 But these men
accepted that proposition because they recognized a transcendent or
objective standard to which human law ought to conform, while Carter was
presented, argued and decided as if such a standard does not exist or is
B4.3 Instead, in Part VII, the judge tried to establish a common standard by
searching for ethical consensus. This is not surprising, since seeking
common ground is a legitimate and important conflict resolution strategy,
and a civil trial can be understood as a formal conflict resolution process.
Thus, the judge frequently referred to what she identified as common ground,
points of agreement, and what was "accepted."285
B4.4 However, the search for common ground in
Carter was subject to the
limitations noted in B1.2 and B1.3. Thus, the judge confined herself to the
sources recommended to her by the parties, and her review of these sources
is largely circumscribed by their submissions and arguments.
The willingness of
reputable physicians to provide assisted suicide and therapeutic homicide
hardly demonstrates that the services are ethical.
B5.1.1 In her search for consensus in medical ethics, the sources relied
upon by the judge included the opinions of physicians, medical associations
and ethicists, and contemporaneous end-of-life practices.
B5.1.2 The plaintiffs produced 13 Canadian medical
practitioners who considered euthanasia or assisted suicide to be ethically
acceptable in some circumstances,286
and six physicians from other countries who were of the same opinion.287
The defendants provided evidence from six Canadian physicians who offered
opposing views,288 three of whom
proved to be somewhat ambivalent.289
B5.1.3 From all of this, the judge concluded that
"experienced and reputable Canadian physicians" who were "unchallenged with
respect to their standing in the medical community or their understanding of
and respect for medical ethics" were willing to provide assisted suicide and
B5.1.4 But exactly the same thing could
have been said of the German physicians and
leaders of the German medical profession who supported the Nazi euthanasia
programme and medical atrocities of the Nazi regime.291 The willingness of
reputable physicians to provide assisted suicide and therapeutic homicide
hardly demonstrates that the services are ethical.
B5.1.5 After all, some physicians are willing to have sex with consenting
patients, but Canadian professional and regulatory authorities are generally
clear that it is always unethical for a physician to do so, even though it
is not against the law.292 This is also the case in the Netherlands. The Royal
Dutch Medical Association forbids physicians to have sex with patients who
though it allows physicians to kill patients who consent.294 In the
United Kingdom, on the other hand, physicians must neither have sex with
patients nor kill them or help them to kill themselves, their consent
B5.1.6 Certainly, these comparisons would have raised interesting ethical
questions about different understandings of physician-patient relationships
and consent,296 had any of the parties chosen to bring them forward. However,
the willingness of physicians to have sex with patients or to kill them (or
help them commit suicide) does not enter into the ethical justification of
any of these policies. One cannot see how it can enter into an ethical
justification of physician-assisted suicide and therapeutic homicide.
B5.2.1 It appears that neither defendants nor plaintiffs provided an
adequate survey of the policies of medical associations or physician
regulators on assisted suicide and euthanasia, but offered a sampling of
policies from different organizations. The selection, such as it was,
illustrates only that there are differing views, while the judge
acknowledged that the "official" position of an association on assisted
suicide and euthanasia does not necessarily represent the views of all of
the members of a profession.297
B5.3.1 Predictably, the ethicists called by the plaintiffs differed from
those called by the defendants about the ethics of physician-assisted
suicide and euthanasia.298
B5.3.2 For the plaintiffs, Professor
Wayne Sumner asserted that, like contemporaneous forms of end-of-life and
palliative care, euthanasia and assisted suicide could be ethically
justified by the informed and voluntary choice of a competent patient.299
Dr. Marcia Angell appealed to the principle of patient autonomy in support
of the procedures,300
which also appears to have been the basis for Dr. Ross Upshurâ€™s assertion
that euthanasia and assisted suicide could be provided on the basis of a
free and informed request by a competent person for whom life is "not worth
B5.3.3 Plaintiff witness Professor Margaret Battin
agreed that the principle of autonomy was fundamental, but insisted that
assisted suicide and euthanasia could not be justified solely by the
informed choice of a patient because the services were being provided by
physicians. She argued that justification required the additional principle
The nature of the patientâ€™s suffering and why it is intolerable to the
patient must also be understood by the physician, who then is obliged to try
to respond as a matter of mercy and in fulfilment of his or her commitment
not to abandon the dying patient. Thus autonomy and mercy go hand in hand:
for the physician to offer assistance in dying, it must be the patientâ€™s
choice and it must also be done to help the patient avoid suffering that is
either intolerable or about to be so.302
B5.3.4 This strongly implied that physicians were
ethically obliged to provide assisted suicide and euthanasia in response to
pain or suffering, and that failure to kill the patient or assist with
suicide amounted to patient abandonment. The claim is absolutely rejected by
those opposed to the procedures, but the judge made no comment about it.
B5.3.5 For the defendant governments, witness Professor
Koch argued that justifications based on autonomy were overly simplistic and
misplaced, pointing out that euthanasia/assisted suicide advocates were not
seeking just autonomy, but the communal and medical support for the
procedures. Against such claims he appealed to the Hippocratic Oath and
rejected what he described as a consumer model of medical practice based
soley on consumer choice.303
B5.3.6 Defendant witness Prof. John Keown asserted that "any
intentional taking of life is unethical and should not be permitted," a
statement that would presumably include suicide, though this point was not
pursued. He insisted that the inviolability of human life was at the heart
of both law and medical practice. He opposed physician-assisted suicide and
euthanasia because of his belief in the sanctity of life, and because he
believed that the practices cannot be controlled if legalized.304
. . . much that is necessary to understand the ethical issues and
controversies associated with end-of-life practices is absent from Part
VII, particularly with reference to palliative sedation.
B5.4.1 Ethicists and other witnesses also discussed
practices. For the plaintiffs, Professor Sumner denied that there was
any "ethical bright line" by which to distinguish euthanasia/assisted
suicide from legal and accepted end-of-life practices.306
Defendant witness Dr. Eugene Bereza was not sure if it was possible in all
cases to clearly distinguish between withholding or withdrawing
life-sustaining treatment and assisted suicide or euthanasia.307
B5.4.2 Plaintiff witness Dr. Gerrit Kimsma of the Netherlands argued that assisted suicide
and euthanasia are consistent with the goals of medicine and already
occurring in fact, though "under a veil of confusion, ambiguity and lack of
On this point, however, the judge ultimately found that the law had deterred all but a very few
Canadian physicians from providing assisted suicide and euthanasia.309 The
evidence, she said, suggested that Canadian physicians provide assisted
suicide or euthanasia in only "a very small number of instances."
B5.4.4 The withdrawal of life support or treatment
was of particular interest
to Madam Justice Smith because 90% of patients die "following the
withdrawal of some form of life support, most commonly the withdrawal of
medical ventilation, dialysis or inotrope medications."
B5.4.5 With respect to end-of-life practices generally,
Madam Justice Smith
identified the pivotal principle of informed consent, which (she said) rests
on the foundational concept of individual autonomy. Medical procedures
cannot be undertaken or sustained without the continuing informed consent of
a competent patient, who is entitled to refuse treatment even if death will
result. In the case of non-competent patients whose wishes are not known,
"medical decisions will be made in the patient's best interests." Patients
can make their wishes known by means of advance directives, and such
directives must be respected if the patient is incapacitated. Alternatively,
decisions about withdrawal or refusal of treatment can be made by legally
recognized third parties.312
Madam Justice Smith held that the law concerning
the right of physicians to withdraw or refuse treatment despite the
objections of third-party decision-makers was uncertain.313
B5.4.6 However, much that
was necessary to understand the ethical issues and
controversies associated with end-of-life practices was absent from Part VII,
particularly with reference to palliative sedation. (See
Appendix "C") Thus,
while the judge's explanation of the law of informed consent is
satisfactory, as is her explanation of the law concerning withdrawal and
refusal of treatment,314 her discussion of the
ethics of end-of-life
decision-making was seriously deficient.
B5.4.7 The deficiency is especially problematic because
Madam Justice Smith
also attempts to answer another question: whether or not current end of life
practices are ethically distinguishable from physician-assisted suicide and
euthanasia,315 one of the plaintiffs' central claims.316
B6.1 A second strand of discussion in Part VII, occasionally spliced into
the discussion of medical ethics, was whether or not an ethical or moral
consensus existed outside the medical profession on the subject of assisted
suicide and euthanasia. This, too, originated in the plaintiffs'
claim, since they asserted that the current law was invalid if its purpose
"to uphold a particular religious conception of morality" that was
unsupported by social consensus in Canada.317
B6.2.1 The reliability of public opinion polls as an indicator of ethical
consensus was disputed.318 British Columbia urged that consensus should be
recognized in a plurality of sources: "in the refusal of successive
governments and Parliaments to legalize assisted dying," in the fact that
"the overwhelming majority of Western democracies" forbid assisted suicide
and euthanasia, in a comprehensive report from the Canadian Senate, and in
laws and judicial rulings that are unspecified in the judgement.319
B6.2.2 The judge ultimately cited an opinion poll showing a majority of
Canadians were "supportive of physician-assisted death in some
was an inaccurate description of the poll, which
referred to "euthanasia," not "physician-assisted death." Moreover, the poll
posed the question without reference to circumstances and without defining
B6.2.3 A poll of this type
was of no value in assessing the ethical content
or ethical significance of the opinions of respondents. While the judge
noted that public opinion polls (in general) "provide some indication as to
societal values overall,"322 she failed to explain how this particular poll
could have reasonably contributed to the ethical evaluation she attempted in Part
B6.3.1 The judge noted that the 1995 Special Senate Committee Report was the
result of a 14 month enquiry that heard evidence from witnesses across the
country and received hundreds of letters and briefs, but adds that the
report was not unanimous on the subject of assisted suicide and euthanasia.323
B6.3.2 She appears to
have give equal weight to subsequent reports produced by
committees of the Royal Society of Canada (RSC) and the Quebec National
Assembly (QNA), both of which unanimously recommended legalization of
assisted suicide and euthanasia.324
B6.3.3 Quite apart from
concerns that might be raised concerning the
comprehensiveness of the reports, the reference to the RSC and QNA reports
in the ruling was questionable for three reasons.
First: five of the six authors of the RSC report favoured at least
voluntary euthanasia before joining the RSC panel,325 and the report was
alleged to present a biased (largely legal) argument.326
Second: three authors of the RSC report were plaintiff witnesses at trial,
and one helped to instruct plaintiff witnesses.327
Third: the recommendations of the QNA committee report
were reported to
have contradicted the majority of submissions received by the committee.328
Madam Justice Smith did not treat the reports as evidence
of consensus that assisted suicide and euthanasia are ethical. Instead, she relied upon
them only to demonstrate a lack of social consensus. She contrasted the majority and minority Senate Committee
positions,329 and the recommendations of the RSC and QNA reports with the
adverse response of Parliament in 2010.330
. . .she completely ignores the prosecution policy of the United
Kingdom, which was also part of the evidentiary record and directly relevant
to the subjects she considers in Part VII.
B6.4.1 In considering Crown Counsel policy governing prosecution of assisted
suicide in British Columbia,331
Madam Justice Smith notes that the policy appears to recognize that the
public interest may not always require prosecution of assisted suicide or
euthanasia, even if there is a strong likelihood of conviction. She finds this conceivably supportive of
legalization of the procedures.332
B6.4.2 However, she completely ignores the prosecution policy of the United
Kingdom, which was also part of the evidentiary record333 and directly relevant
to the subjects she considers in Part VII. According to the English
policy, if there is sufficient evidence to support a charge, there is a
greater public interest in prosecuting physicians, healthcare workers and
others who assist in the suicide of someone in their care than in
prosecuting those who are not in positions of authority.334
Smith's silence concerning this document is inexplicable.
Madam Justice Smith provided succinct and useful summaries of the arguments
for and against legalizing assisted suicide and euthanasia before drawing
conclusions about the ethical debate.335
She correctly noted agreement that palliative care is not always effective,
and, more commonly, often not accessible.336
B7.3 She also claimed that there is no disagreement about the facts related
in Part VII concerning "existing clinical end-of-life practices and the
understood legal and ethical justification for them."337 Given her incomplete
treatment of the subject, assertion was at least a gross oversimplification,
if not simply inaccurate. (See Appendix "C")
B7.4 The judge asserted that there was "little dispute" that principles of
autonomy, compassion and non-abandonment "play a central role in the
formation of medical ethics" and that the principle "do no harm" was of
continuing importance for physicians."338 This
was correct, but insufficient.
B7.5 In the first place, this comment implied that "medical ethics"
monolithic entity, and suggests that the judge was unaware that there were
distinct traditions of medical ethics that were not always in agreement on
B7.6 Moreover, autonomy, compassion, non-abandonment and non-maleficence are
not the only principles that shape medical ethics, and there are ongoing
disputes about the application of these principles. For example: the
principle of non-abandonment is generally accepted, but that it could be
applied (as suggested by Professor Battin: B5.3.3) to compel an objecting physician
to facilitate assisted suicide would be sharply contested. The judge's
failure to appreciate this is illustrated by her casual dismissal of
references in the evidence and in submissions to conscientious objection by
Madam Justice Smith acknowledged (without explaining)
controversies associated with palliative sedation and the withdrawal of food
and fluids from patients unable to give informed consent, but deemed them
irrelevant to the claims made by the plaintiffs.340
B8.1 Under the heading,
"Conclusions about the Ethical Debate," Madame Justice Smith stated that she
would "attempt to draw some conclusions
about the ethics of physician-assisted death."341 (Emphasis added.) A
significant difference in language between Part VII and Part VIII of the
ruling becomes evident with this statement. Compare "I will attempt to draw
some conclusions" (Part VII) with "I will. . . make findings of fact"342 and
"I will . . . set out my conclusions . . . based on the evidence"343 in Part VIII.
B8.2 This difference in language is pervasive.
 What conclusions can be reached . . .? . . .
The data do not permit firm conclusions about . . .
 Having said that, I am able to reach some
conclusions . . .
 I accept that . . . I also found . . . and I
 The evidence supports the conclusion that . .
 . . . I find that . . .
 I find that the empirical evidence . . . does
not support . . .The evidence does support. . .
 No conclusion can be drawn from that study
with respect to. . .
 It is impossible to know from statistical
evidence . . . However, the evidence . . . does not support the conclusion
that . . .
 . . . it is difficult to reach any firm
 . . . I do view that as a significant
difference . . .
 The evidence suggests ...There is no evidence
suggesting . . .
 Overall, the evidence permits the following
conclusions . . .
 In summary, having reviewed the evidence and
the submissions on this point, I conclude that . . . I find that the
evidence establishes that . . .
 I will review. . . and. . . before setting out
 My review of the evidence leads me to conclude
. . .
798] Weighing the evidence as a whole, I conclude
that . . .
 I accept Professor Werthâ€™s evidence that . . .
815] Although I accept the evidence of . . . I
accept the evidence of . . .
 The evidence as to informed consent permits me
to conclude that . . .
 I agree with the evidence of the plaintiffsâ€™
experts that . . .
 The evidence . . . leads me to the conclusion
that . . .
 I accept that . . . and that . . .
 . . . there is no evidence that . . .
 I accept that . . .and that . . . I am not
persuaded that . . .
 This review of the evidence permits no
conclusion other than . . .
 My review of the evidence . . . leads me to
conclude that . . .
 The preponderance of the evidence from
ethicists is . . .
 I find the arguments . . . to be persuasive.
 . . . a bright-line ethical distinction is
 I also find persuasive the arguments . . . I
agree that . . . It is unclear, therefore. . .
 The evidence shows that thoughtful and
well-motivated people can and have come to different conclusions . . .
 Their evidence shows that . . .
 . . . provide some indication as to . . .
 As I see it, the divergence is with respect
to. . .
 . . . I think that the real difference . . .
Rather, the difference . . .
 . . . there appears to be relatively strong
societal consensus about . . .
 . . . weighing all of the evidence, I do not
find that there is a clear societal consensus either way . . . However,
there is a strong consensus that if . . .
B8.3 Turning to particulars, recall that, when
introducing Part VII, Madame Justice Smith stated the question she proposed
to address: "Would it ever be ethical for a physician to provide assisted
suicide or euthanasia at the request of a competent, informed patient?"(B2.1)
B8.3 In her "conclusions," the judge simply ignored
this question - purportedly the focus of Part VII. Instead, she substituted
four different questions and used them as three headings (the third
including two questions).
The exploration of the willingness of physicians to
provide assisted suicide or euthanasia revealed only what ought to have been
obvious from the pleadings: that some were willing, others not. The judge's
conclusion that some "experienced and reputable physicians" would be willing
to do so resolved nothing with respect to the ethics of the practices.
Ultimately, Madam Justice Smith's conclusion about the ethical
relationship between current end-of-life practices and
physician-assisted suicide and euthanasia is inconclusive at best, and,
at worst, incoherent.
B8.5.1 Much of this section of the ruling concerned peripheral legal issues344
and a re-statement of the ethical arguments of the plaintiffs and
B8.5.2 The subject of intention as an ethically significant element in
decision-making was introduced,346 but the judge did not pursue it because, in
her view, the focus of the Supreme Court of Canada's discussion of intention
in Rodriguez was law, not ethics.347
B8.5.3 This was, arguably, a misreading of
Rodriguez, in which the majority held that "distinctions based upon
intent are important, and in fact form the basis of our
criminal law." (Emphasis added.)348
The distinctions in question are
philosophical or ethical distinctions incorporated into criminal law, and
thus relevant to Madame Justice Smithâ€™s consideration of the ethics of
end-of-life care. Her apparent position - that intention could provide the
basis of a valid distinction in law,349 but not in ethics - was ahistorical
B8.5.4 In any case, in Part VII, Madam Justice Smith offered the following summary of her
The evidence shows that within the medical and bioethical community the
question still remains open whether an ethical distinction is maintainable
between withholding or withdrawing life-sustaining treatment and palliative
sedation on the one hand, and physician-assisted death on the other.350
This was consistent with the summary with which she introduced the ruling,
in which she stated that "currently accepted practices bear similarities to
physician-assisted death, but opinions differ as to whether they are
ethically on a different footing."351
B8.5.5 Immediately after
declaring the question still open, however, she claimed that "[t]he preponderance of
the evidence from ethicists is that there is no ethical distinction between
physician-assisted death and other end-of-life practices whose outcome is
highly likely to be death," adding that shefound the arguments for
this view "persuasive."352
She noted that a number of defendant and plaintiff witnesses were
doubtful about the distinction,353 and that she found it difficult to make an
distinction in individual cases, "whether based on a distinction between
foreseeing and intending, on a distinction between acts and omissions, or on
B8.5.6 However, on the judgeâ€™s own account, the
evidence from "the medical and bioethical community" consisted of a sampling
of conflicting ethical opinions provided by parties to a contentious suit,
and the expression of doubts and difficulties by some of the witnesses. The
evidence actually demonstrated that there was no consensus: that ethicists
were divided, even though "a number of respected ethicists and
practitioners" favoured the position she found "persuasive."355
In short, the evidence, such as it was, actually could not answer the
question the judge posed. (B8.5).
B8.5.7 The judgeâ€™s reference to a
evidence" involved the misapplication of an evidentiary rule developed for
other purposes. The "preponderance of evidence" or "balance of
probabilities" rule expresses the judicial standard of proof in civil cases,
but it pertains to findings of contested facts, not to the evaluation of
contested ethical beliefs. A judge cannot properly make a finding of fact to
the effect that ethical position A is correct and ethical position B is not:
that, for example, capital punishment is ethical, and those who think
otherwise are mistaken.
B8.5.8 Further, the binary system of reasoning and
rules about standards and burdens of proof used by our courts is sufficient
for the purposes of a common law civil proceeding,356
but fall short of what is normative in other disciplines. For example, "more
likely than not" or 51% probability is sufficient to prove facts required
for judicial decision-making in civil litigation,357
but not for medical decision-making.358
B8.5.9 Nonetheless, Madame Justice Smith said that she
had been persuaded that the intention of the actor is of no ethical
consequence, and that there is no ethical difference between lethally
injecting a willing patient and withdrawing treatment to allow a patient to
die of natural causes. Similarly, she was persuaded either that there was no
ethical distinction between suicide and assisted suicide in the
circumstances contemplated by the plaintiffsâ€™ application.359
B8.5.10 For the reasons noted above (B8.5.7), it was
impossible for her to arrive at such "conclusions" based on the evidence.
This likely explains why she stated that she was persuaded by arguments,
not by evidence.360
B8.5.11 Apart from the impossibility of arriving at
such "conclusions," her denial of the significance of intention was
inconsistent with criminal law - a point that had been made by the majority
of the Supreme Court of Canada in Rodriguez,361
but which she discounted.362
Madam Justice Smith purports to discover a "strong consensus"
supporting the view that if physician assisted suicide were ever
ethical, it would only be in strictly limited circumstances. This
is like claiming a strong consensus that, if violence against women were
ever to be ethical, it would only be in strictly limited circumstances.
B8.6.1 Madam Justice Smith asserted that there appeared to be a "strong
consensus that currently legal end-of-life practices are ethical."363
this conclusion was questionable in some respects (See
and the judge commented on it in her summary of the ruling,364 it did not enter
into the reasoning offered to support her decision to strike down
judge believed that consensus about end-of-life practices was
ultimately based on the "value of individual autonomy," but this was a hazardous
oversimplification. Personal autonomy is arguably the most highly prized
legal principle in Canada, and in dominant theories of bioethics it is
frequently the value that trumps all others. However, other ethical
traditions give priority to other principles, like the sanctity of life or
human dignity.366 Practitioners from these traditions may share in a consensus
about a particular end-of-life practice, but their agreement may not be
based on the concept of autonomy.
B8.6.3 In attempting to identify the key difference of opinion that
frustrates ethical consensus, Madam Justice Smith concludes that there was
really no difference of opinion about the value of human life. "[N]o one
questions that the preservations of human life has a very high value in our
society," she writes. "Rather, the difference of opinion is about whether
the preservation of human life is an absolute value, subject to no
B8.6.4 With respect,
misrepresented, or, at least, caricatured the position of the principal opponents of
assisted suicide and therapeutic homicide. They did not hold that human life
must be preserved at all costs, without exception. In fact, Madam Justice Smith acknowledged that the
Christian Legal Fellowship had explicitly repudiated this view in its
B8.6.5 It appears that the judge's interest here was
in the possiblity of "exceptions" rather than "value." That is, she may simply mean, "Granted that the
preservation of human life has very high value, when can we make an
exception and kill someone?"
B8.6.6 Rephrasing the question in this way accounts for the judge's
reference in the next paragraph to the "deprivation account of the badness
of death" offered by Professor Sumner. "[W]hat makes death such a bad thing
in the normal case," he said, "is what it takes away from us - the
continuation of a life worth living."369 It follows that if a life is not worth
living, assisted suicide or euthanasia could be a good for that person.
B8.6.7 In any case,
Madam Justice Smith does not address the difference of
opinion she infelicitously described or Professor Sumner's provocative ethical
reflections. Neither seems to have been related directly to the judge's
eventual "conclusions" in Part VII.
B8.6.8 Instead, the judge emphasized differences of opinion among medical
associations, individual physicians and politicians,370 among panels,
committees, parliaments and senates,371 and among professional ethicists and
Consistent with these differences, she concluded that there is no "clear
societal consensus" about assisted suicide or euthanasia in the case of
competent adults who were "grievously ill and suffering symptoms that cannot
B8.6.9 In addition, however,
Madam Justice Smith purported to discover a
"strong consensus" supporting the view that if physician assisted suicide
were ever ethical, it would only be in strictly limited circumstances.374
This was pure speculation of the most unlikely sort, not an evidence-based
conclusion. It was like claiming a strong consensus that, if violence against women were
ever to be ethical, it would only be in strictly limited circumstances.
A significant number of people and a number of religious groups hold that
assisted suicide can never be ethical; they absolutely reject the judge's
"if." The judge's claim was a rhetorical conjuring trick intended to make
these people and groups disappear. It was a pretence that allowed her
to proceed as if they did not exist, as if there was no need for her to take
even the minimal notice of them necessary to dismiss their views as
B8.4.11 Madame Justice Smith did not conclude that the
law attempted to uphold a conception of morality inconsistent with social
consensus about physician assisted suicide and euthanasia. Neither did she
answer the question she raised.
B9.1 Madame Justice Smithâ€™s review of ethical issues in
Part VII of the ruling was unsatisfactory because much that was necessary to
understand the ethical issues and controversies associated with end-of-life
practices was lacking (See Appendix "C"). Her suggestion that intention
could provide the basis of a valid distinction in law but not in ethics was
ahistorical and indefensible.
B9.2 Of the four questions posed and discussed
in Part VII (B2.1, B8.4,
B8.5, B8.6), Madame Justice Smith actually answered
only one. However, her answer - that some "experienced and reputable
Canadian physicians" were willing to provide euthanasia or assisted suicide
- disclosed nothing about the ethics of assisted suicide or euthanasia.
B9.3 The judge was unable to identify any actual
ethical consensus concerning physician assisted suicide and euthanasia among
professional associations, physicians, ethicists, public committees and the
public as a whole.
B9.4 The evidence considered by Madame Justice Smith
indicated that the question as to whether or not contemporaneous end of life
practices could be distinguished from euthanasia/assisted suicide was
B9.5 The judge was personally persuaded by argument -
not by evidence - that there was no ethical distinction between them.
Similarly, she was personally persuaded by argument - not evidence - that
there was no ethical distinction between suicide and assisted suicide in
B9.6 In the opening paragraphs of the ruling, Madame
Justice Smith summarized the findings of fact and legal reasoning underlying
her decision about the constitutional validity of the law against assisted
suicide.375 She noted the absence
of agreement about the ethics of assisted suicide/euthanasia and about their
ethical relationship to contemporaneous end-of-life practices, but these
findings did not contribute to her decision about the constitutionality of
the law. She did not assert as conclusions or findings of fact the personal
views noted in B9.5.
B10.1 The discussion of the
ethical debate in Part VII and what the judge called her "conclusions" are
not on the same footing in relation to the ruling as the review of evidence
concerning safeguards and conclusions in Part VIII. That is evident from the
judgeâ€™s different explanations of the purpose of each part (B2.11-B2.12) and the
different language she used in each. The language in Part VIII is that of
adjudication: in Part VII, of discussion and comparison (B8.1-B8.2).
B10.2 Although briefly summarized in the opening
paragraphs of the ruling, nothing in Part VII actually contributed to the
judgeâ€™s decision about the constitutionality of the law. Part VII could have
been left out of the ruling without affecting the outcome. This was not true
of Part VIII, also summarized in the opening paragraphs of the ruling.376
B10.3 Part VII is best described as the "considered
enunciations of the judge's opinion on [points] not arising for decision"
that went beyond what was necessary for the decision.377
The legal term for this is "dicta."378
B10.4 Other courts are not bound to adhere or defer to
dicta because they do not form part of a judicial decision, although they
can sometimes be persuasive or influential.
B10.5 The judicial dicta in Part VII not only lack
binding authority, but, once the confusion and shortcomings in the judgeâ€™s
review of the ethical debate are exposed, should lack persuasive force