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Service, not Servitude
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Submission to the College of Physicians and Surgeons of Ontario
Re: Interim Guidance on Physician Assisted Death

Appendix "B"

Carter in the Trial Court, Part VII: A Judicial Soliloquy on Ethics

Carter v. Canada (Attorney General), 2012 BCSC 886
Supreme Court of British Columbia, 15 June, 2012.
Vancouver, British Columbia.


Taken from Murphy S., "Legalizing therapeutic homicide and assisted suicide: A tour of Carter v. Canada. "

B1.    A note of caution
B2.    The questions addressed in Part VII
B3.    Plaintiffs' claim shapes and limits the analysis
B4.    Ethics: which one?
B5.    Medical ethics

B5.1    Ethics and the willingness of physicians
B5.2    Ethics and the positions of medical associations
B5.3    Ethics and the opinions of ethicists
B5.4    Ethics and current end-of-life practices

B6.    Ethics of society

B6.2    Ethics and public opinion
B6.3    Ethics and public committees
B6.4    Ethics and prosecution policies

B7.    Summary of the ethical debate
B8.    Conclusions about the ethical debate

B8.2    Would Canadian physicians provide the services?
B8.3    Does current medical practice with respect to end-of-life care make distinctions that are ethically defensible?
B8.4   Does the law attempt to uphold a conception of morality inconsistent with the consensus in Canadian society?

B9.    Carter Part VII: in brief

B9.1    Unanswered questions
B9.2    Meaningless findings
B9.3    Inconclusiveness
B9.4    Neglected evidence
B9.5    Deficient review of end-of-life decision-making

B10.    On appeal to the Supreme Court of Canada

B1.    A note of caution

B1.1    Part VII of the trial court judgement in Carter 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."1

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, which is selected by them according to their respective interests.

B1.3    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.  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.

B1.4    Part VII of the judgement, in which the judge tries to make sense of the evidence "as presented," seems to reflect this limitation.

B2.    The questions addressed in Part VII

B2.1    In Part VII of the judgement, Madam Justice Smith posed three questions:

1. 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, informed patient;2

2. whether or not current end of life practices are ethically distinguishable from physician-assisted suicide and euthanasia;3

3. whether or not the law attempts to uphold a conception of morality inconsistent with social consensus.4

B2.2    The reason for this exercise is unclear.

B2.3    Madam Justice Smith asserted that the question before her is constitutional, not legal or ethical, adding that the realms of ethics, law and constitutionality "tend to converge even though they do not wholly coincide."5 However, she did not explain why a legal challenge to the constitutionality of the law against assisted suicide is not a legal question. And if the question before her was not ethical, one may reasonably ask why she embarks upon a lengthy discussion of ethics. Her explanation that the law and medical practice are shaped by ethical principles6 was not germane in the circumstances of the case before her, in which ethical principles and/or their application were either in dispute or in conflict.

B2.4    Moreover, Madam Justice Smith did not confine herself to the ethical question she proposes to answer. Instead, in Part VII she seemed to wander through the evidence, perhaps attempting to synthesize disparate and incomplete evidentiary materials and arguments provided by the parties in conflict.

B3.    Plaintiffs' claim shapes and limits the 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,"7 originated in the plaintiffs' claim, which was specifically for physician-assisted suicide and euthanasia.

B3.2    However, the law then forbade anyone - not just physicians - from assisting in suicide or therapeutic homicide. If there is an ethical question central to constitutional issues, it is the ethics of assisted suicide and therapeutic 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,8 thus avoiding these logically prior ethical questions, and Madam Justice Smith did the same when she expressly accepted this framework for her analysis.9 Thus, Part VII includes one strand of discussion that addresses a central question identified by the judge: "whether or not it is ethical for physicians to provide such assistance." 10

B4.    Ethics: which one?

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 provide 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 recognized that what is ethical or moral may not be legal, and what is legal may not be moral or ethical,11 a proposition with which St Augustine, St. Thomas Aquinas and Martin Luther King Jr. (among others) would agree.12 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 irrelevant.

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 is "accepted."13

B4.4    However, the search for common ground in Carter was confined to the sources recommended to her by the parties, and her review of these sources was largely circumscribed by their submissions and arguments.

B5.    Medical ethics
B5.1    Ethics and the willingness of physicians

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 current end-of-life practices.

B5.1.2 Thus, the judge asks if Canadian physicians "would be willing to assist patients" with suicide and euthanasia if the law were changed.14 She concluded that there were "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" who were willing to provide assisted suicide and euthanasia.15

B5.1.3    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.16 And she ignored the fact that there were also "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" who were not willing to provide assisted suicide and euthanasia.  The willingness of reputable physicians to provide assisted suicide and therapeutic homicide hardly demonstrates that the services are ethical.

B5.1.4    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.17 This is also the case in the Netherlands. The Royal Dutch Medical Association forbids physicians to have sex with patients who consent,18 though it allows physicians to kill patients who consent.19 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 notwithstanding.20

B5.1.5    Certainly, these comparisons would have raised interesting ethical questions about different understandings of physician-patient relationships and consent,21 had any of the parties chosen to bring them forward. However, it appears that the willingness of physicians to have sex with patients is treated as a problem to be solved rather than an ethical justification for physician-patient sex, so it is not clear how the willingness of physicians to kill patients or help them commit suicide can be presumed to provide ethical justification for physician-assisted suicide and therapeutic homicide.

B5.2    Ethics and the positions of medical associations

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, illustrated only that there were 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.22

B5.3    Ethics and the opinions of ethicists

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.23

B5.3.2    For the plaintiffs, Dr. Marcia Angell, Professor Margaret Battin and Dr. Upshur justified physician-assisted suicide and euthanasia primarily by appeals to patient autonomy.24 Defendant witness Professor Koch responded that one can hardly claim to be acting autonomously while demanding that society support and assist with suicide.25

B5.3.3    For the defendant governments, 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.26

B5.4    Ethics and current end-of-life practices

B5.4.1    Ethicists and other witnesses also discussed current end-of-life practices. 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 truth/disclosure."27

B5.4.2    However, the judge found that the law had deterred all but a very few Canadian physicians from providing assisted suicide and euthanasia.28 The evidence, she said, suggested that Canadian physicians provided assisted suicide or euthanasia in only "a very small number of instances." 29

B5.4.3    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." 30

B5.4.4    With respect to end-of-life practices generally, Madam Justice Smith identifies the pivotal principle of informed consent, which (she said) rest 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.31 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.32

B5.4.5    However, much that is 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.  Thus, while the judge's explanation of the law of informed consent was satisfactory, as was her explanation of the law concerning withdrawal and refusal of treatment,33 her discussion of the ethics of end-of-life decision-making was seriously deficient.34

B5.4.6    The deficiency was especially problematic because Madam Justice Smith also attempted to answer another question: whether or not current end of life practices could be ethically distinguished from physician-assisted suicide and euthanasia.35 One of the plaintiffs' central claims was that there is no ethical distinction .36 (See B8.3)

B6.    Ethics of society

B6.1    A second strand of discussion in Part VII, occasionally spliced into the discussion of medical ethics, was whether or not there was an ethical or moral consensus on the subject of assisted suicide and therapeutic homicide outside the medical profession . This, too, originated in the plaintiffs' claim, since they asserted that the law was invalid if its purpose was "to uphold a particular religious conception of morality" that was unsupported by social consensus in Canada.37

B6.2    Ethics and public opinion

B6.2.1    The reliability of public opinion polls as an indicator of ethical consensus was disputed.38 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.39

B6.2.2    The judge ultimately cited an opinion poll showing a majority of Canadians "are supportive of physician-assisted death in some circumstances."40 This is 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 "euthanasia."41

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,"42 she failed to explain how this particular poll could reasonably contribute to the ethical evaluation she attempted in Part VII.

B6.3    Ethics and public committees

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 added that the report was not unanimous on the subject of assisted suicide and euthanasia.43

B6.3.2    She appeared to 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.44

B6.3.3    Quite apart from challenges that might be made concerning the comprehensiveness of the reports, the reference to the RSC and QNA reports in the ruling might be questioned for three reasons.

First: five of the six authors of the RSC report favoured at least voluntary euthanasia before joining the RSC panel,45 and the report was alleged to present a biased (largely legal) argument.46

Second: three authors of the RSC report were plaintiff witnesses at trial, and one helped to instruct plaintiff witnesses.47

Third: the recommendations of the QNA committee report are reported to have contradicted the majority of submissions received by the committee.48

B6.3.4    However, 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 contrasts the majority and minority Senate Committee positions,49 and the recommendations of the RSC and QNA reports with the adverse response of Parliament in 2010.50

B6.4    Ethics and prosecution policies

B6.4.1    In considering Crown Counsel policy governing prosecution of assisted suicide in British Columbia,51 Madam Justice Smith noted that the policy appeared 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 found this conceivably supportive of legalization of the procedures.52  She failed to acknowledge that public interest may not always require the prosecution of assault, but that has never been proposed as justification for legalizing assault.

B6.4.2    Further, she completely ignored the prosecution policy of the United Kingdom, which was also part of the evidentiary record53 and directly relevant to the subjects considered 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.54 Madam Justice Smith's silence concerning this evidence is inexplicable.

B7.    Summary of the ethical debate

B7.1    Madam Justice Smith correctly noted agreement that palliative care is not always effective, and, more commonly, often not accessible.55

B7.2    She also stated that there was 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."56 Given her incomplete treatment of the subject, her conclusion is highly questionable.34

B7.3    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."57 This was correct, but insufficient.

B7.4    In the first place, this comment implied that "medical ethics" is a monolithic entity, and suggests that the judge was unaware that there are distinct traditions of medical ethics that are not always in agreement on all points.

B7.5    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) to compel an objecting physician to facilitate assisted suicide58 would be sharply contested. The judge's failure to appreciate this was illustrated by her casual dismissal of references in the evidence and in submissions to conscientious objection by physicians.59

B7.6    Finally, 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 deems them irrelevant to the claims made by the plaintiffs.60

B8.    Conclusions about the ethical debate

B8.1    The judge provided succinct and useful summaries of the arguments for and against legalizing assisted suicide and euthanasia before drawing conclusions about the ethical debate.61 She then arranged her conclusions under three headings.

B8.2    Would Canadian physicians provide the services?

B8.2.1    Ultimately, 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 to kill patients or help them commit suicide, 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, for the obvious reason that similarly experienced and reputable physicians opposed them.

B8.3    Does current medical practice with respect to end-of-life care make distinctions that are ethically defensible?

B8.3.1    Much of this section of the ruling concerned peripheral legal issues62 and a re-statement of the ethical arguments of the plaintiffs and defendants.63

B8.3.2    The subject of intention as an ethically significant element in decision-making is introduced,64 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.65 It does not seem to have occurred to her that intention might nonetheless be relevant to her consideration of the ethics of end-of-life care. Nor did she explain why she thought that intention can provide the basis of a valid distinction in law66 but not in ethics.

B8.3.3 In any case, Madam Justice Smith offered the following summary of her study:

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.67

B8.3.4    Consistent with this, in summarizing the ruling, she states that "currently accepted practices bear similarities to physician-assisted death, but opinions differ as to whether they are ethically on a different footing."68 This plainly conceded that she could not answer the question she posed (B8.3) by reference to the evidence from "the medical and bioethical community."

B8.3.5    However, the judge then contradicted herself. Immediately after declaring the question still open, 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 she found this view "persuasive."69 Further, she observed that a number of defendant and plaintiff witnesses were doubtful about the distinction,70 and that she found it difficult to make a distinction in individual cases.71 Such doubts and difficulties (possibly exacerbated by avoiding consideration of intention) did not reconcile the contradiction between declaring the question "open" and then deciding it on the basis of conflicting opinions.

B8.3.6    Ultimately, Madam Justice Smith's conclusion about the ethical relationship between current end-of-life practices and physician-assisted suicide and euthanasia was inconclusive at best, and, at worst, incoherent.

B8.4   Does the law attempt to uphold a conception of morality inconsistent with the consensus in Canadian society?

B8.4.1    Madam Justice Smith asserted that there appeared to be a "strong consensus that currently legal end-of-life practices are ethical."72 While this conclusion may be open to question in some respects,34 and the judge commented on it in her summary of the ruling,73 it did not enter into the reasoning offered to support the her decision to strike down the law.74

B8.4.2    The judge's belief that consensus about end-of-life practices was ultimately based on the "value of individual autonomy" 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.75 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.

B8.4.3    In attempting to identify the key difference of opinion that frustrates ethical consensus, Madam Justice Smith concluded 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 wrote. "Rather, the difference of opinion is about whether the preservation of human life is an absolute value, subject to no exceptions."76

B8.4.4    With respect, this statement is a caricature of the position of the principal opponents of assisted suicide and therapeutic homicide. They do not hold that human life must be preserved at all costs. Madam Justice Smith acknowledged that the Christian Legal Fellowship had explicitly repudiated this view in its submission.77 It appears that the judge's interest here was not on "cost" but on "exceptions." 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?"

B8.4.5    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 says, "is what it takes away from us - the continuation of a life worth living."78 It follows that if a life is not worth living, assisted suicide or euthanasia could be a good for that person.

B8.4.6    In any case, Madam Justice Smith did not address the difference of opinion she purported to identify by way of caricature, or Professor Sumner's provocative ethical reflections. In fact, neither seems to be related directly to the judge's eventual conclusions in Part VII, though perhaps they reveal something of her personal outlook.

B8.4.7    Instead, the judge emphasized differences of opinion among medical associations, individual physicians and politicians,79 among panels, committees, parliaments and senates,80 and among professional ethicists and medical practitioners.81 Consistent with these differences, she concluded that there was no "clear societal consensus" about assisted suicide or euthanasia in the case of competent adults who are "grievously ill and suffering symptoms that cannot be alleviated."82

B8.4.8    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.83 This is like claiming that there is a strong consensus that, if violence against women were ever to be ethical, it would only be in strictly limited circumstances.

B8.4.9    But there is no consensus that violence against women could ever be ethical, and there is no consensus that euthanasia and assisted suicide could ever be ethical.  A significant number of people and a number of religious groups absolutely reject the judge's "if." Madam Justice Smith's "strong consensus" was a rhetorical conjuring trick used to make these people and groups disappear.  In effect, the judge adopted the pretense that they do not exist, or dismissed their views as irrelevant to the formation of a consensus.

B8.4.10    In the end, Madam Justice Smith simply did not answer the question she posed; she did not say whether or not the law attempted to uphold a conception of morality inconsistent with social consensus.

B9.    Carter Part VII: in brief
B9.1    Unanswered questions

B9.1.1    In Part VII of the judgement, Madam Justice Smith was unable to answer three questions she posed:

- whether or not it would ever be ethical for a physician to provide assisted suicide or euthanasia at the request of a competent, informed patient;

- whether or not current end of life practices are ethically distinguishable from physician-assisted suicide and euthanasia;

- whether or not the law attempts to uphold a conception of morality inconsistent with social consensus.

B9.2    Meaningless findings

B9.2.1    The judge's finding that "experienced and reputable Canadian physicians" are willing to provide assisted suicide and euthanasia disclosed nothing about the ethics of the procedures.

B9.2.2    The purported "strong consensus" about assisted suicide "if" it were ethical was a fabrication constructed by excluding those who absolutely rejected the suggestion that it cold ever be ethical.

B9.3    Inconclusiveness

B9.3.1    Madam Justice Smith was unable to identify an ethical consensus concerning assisted suicide and euthanasia among professional associations, physicians, ethicists, public committees and the public as a whole.

B9.3.2    The judge was unable to determine whether or not current end-of-life practices can be ethically distinguished from assisted suicide and euthanasia.

B9.4    Neglected evidence

B9.4.1    Madam Justice Smith reviewed British Columbia's prosecution policy, but inexplicably failed to consider the prosecution policy of the United Kingdom, which spoke to issues dealt with in Part VII.

B9.5    Deficient review of end-of-life decision-making

B9.5.1 Much that is necessary to understand the ethical issues and controversies associated with end-of-life practices is lacking in Part VII, particularly with reference to palliative sedation.

B9.5.2 Despite prompting by the Christian Legal Foundation,84 the judge does not explain why intention cannot be a valid element in ethical decision-making at the end of life.

B10.  On appeal to the Supreme Court of Canada

B10.1    An appeal does not involve a re-trial of a case.  An appellate court considers the evidence heard by the trial judge (the facts), including inferences or conclusions that the trial judge draws from the evidence.  It also considers the trial judge's interpretation of the law when applying it to the evidence in order to reach a conclusion.

B10.2    If the appeal concerns a point of law, the "standard of review" is correctness; the appellate court can replace the trial judge's findings with its own if there is an error in law.  If the appeal concerns the facts, or questions of mixed fact and law, the appellate court will not overturn the lower court ruling unless the trial judge has made a "palpable and overriding error."85  This means only that the evidence at trial is capable of supporting the trial judge's conclusions. It does not mean that the appellate judges would reach the same conclusions had they tried the case themselves. It does not even mean that the trial judge's conclusions are objectively correct.

B10.3    This can be illustrated by applying the standard of review for judicial fact-finding to the first report of Columbus that he had reached Asia. His conclusion was not a "palpable and overriding error" according to the evidence 'on the record' in 1492. The error became "palpable" only after evidence that had been left out became available.

B10.4    In this respect, Madam Justice Smith's conclusion that there is no ethical distinction between euthanasia and withdrawal or refusal of care was analogous to Columbus' conclusion that there was no geographical distinction between Cuba and China. Both were "evidence-based" conclusions, but both left out evidence that was capable of undermining them.

B10.5    A further consideration is that not everything in a trial court ruling is relevant for the purpose of appeal. For example: though Madam Justice Smith's conclusion about the significance of prosecutorial discretion was arrived at by tendentious reasoning and cherry-picked evidence (B6.4), this was irrelevant on appeal because she did not rely upon it to reach the conclusion that the prohibition of euthanasia and physician assisted suicide was unconstitutional.  The same applies to the balance of Part VII of the judgement.

B10.6    The Supreme Court of Canada thus had little to say about Madam Justice Smith's judicial soliloquy on ethics. In outlining the judicial history of the case, the judges briefly and uncritically summarized her findings and mentioned the fabricated "strong consensus" about the theoretical ethical acceptability of euthanasia and assisted suicide (B8.4.8-B8.4.9)86 Later, when considering whether or not it was appropriate to overrule Rodriguez, the Court reviewed the differences between Rodriguez and Carter, including "[T]he matrix of legislative and social facts."

The majority in Rodriguez relied on evidence of (1) the widespread acceptance of a moral or ethical distinction between passive and active euthanasia (pp. 605-7); (2) the lack of any "halfway measure" that could protect the vulnerable (pp. 613-14); and (3) the "substantial consensus" in Western countries that a blanket prohibition is necessary to protect against the slippery slope (pp. 601-6 and 613). The record before the trial judge in this case contained evidence that, if accepted, was capable of undermining each of these conclusions.87 (Emphasis added)

B10.7    The conditional reference to the evidence in the trial record (if accepted, was capable) reflects adherence to the standard of review. The Supreme Court could not say that the trial judge had made a "palpable and overriding error."

B10.8    With respect to the first point, which concerns the ethical acceptability of euthanasia, this was inconsequential. The trial judge's ethical musings about euthanasia and assisted suicide were irrelevant to her ruling, the ethical or moral acceptability of the procedures was not an issue in the appeal,88 and the Supreme Court of Canada was unconcerned with the question.89 The Court did, however, acknowledge the existence of moral opposition to killing patients and helping them commit suicide,90 and the need to accommodate objecting health care providers.91


Notes

1.  Carter v. Canada, Christian Legal Fellowship's Written Submissions, para. 85

2.  Carter v. Canada, para. 161-162, 183, 316

3.  Carter v. Canada, para. 186, 318

4.  Carter v. Canada, para. 177, 318

5.  Carter v. Canada, para. 173

6.  Carter v. Canada, para. 165

7.  Carter v. Canada, para. 173. Emphasis added.

8.  Carter v. Canada, para. 175. See Original Notice of Claim, Part 2, para. 1-3. This refers to the liberty interests of others who wish to help someone obtain "physician-assisted dying services," not suicide per se. (Original Notice of Claim, Part 3, para. 12-14)

9.  Carter v. Canada, para. 175

10.  Carter v. Canada, para. 164

11 Carter v. Canada, para. 173

12.  St. Augustine, On the Free Choice of the Will (De Libero Arbitrio Voluntatis), Book I,V. Indianapolis-New York: Bobbs-Merrill, 1964, p. 11; St. Thomas Aquinas, Summa Theologica, II.I.96.4 (Accessed 2012-07-10); King, Martin Luther, Letter from Birmingham Jail, 16 April, 1963. (Accessed 2012-07-10)

13 Carter v. Canada, para. 163, 200, 234, 236, 300, 303-306, 308-309, 311, 322, 349. Such reference also occur outside Part VII: para.5, 8, 492, 1198, 1336, 1369.

14 Carter v. Canada, para. 318

15 Carter v. Canada, para. 319, 344. They are identified in para. 254.

16.  "Germany's medical association has adopted a declaration apologizing for sadistic experiments and other actions of doctors under the Nazis. . . The medical association says "these crimes were not the actions of individual doctors but involved leading members of the medical community" and should be taken as a warning for the future." "German medical association apologizes for Nazi-era crimes committed by doctors." Associated Press, 25 May, 2012. (Accessed 2012-07-23). See alslo Lifton, Robert Jay, The Nazi Doctors: Medical Killing and the Psychology of Genocide. United States: Basic Books, 1986, p.33-35.

17.  For example, "The nature of a fiduciary relationship makes a consensual sexual relationship between physician and patient impossible." College of Physicians and Surgeons of British Columbia, Professional Standards and Guidelines: Sexual Boundaries in the Physician-Patient Relationship (October, 2009) (Accessed 2012-07-10)

18.  Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst (KNMG), Seksueel contact tussen arts en patiënt: Het mag niet, het mag nooit. [Royal Dutch Medical Association, Sexual contact between doctor and patient: It should not be, it should never be.](2000) (Accessed 2012-07-10)

19.  Royal Dutch Medical Association, The Role of the Physician in the Voluntary Termination of Life (30 August, 2011) (Accessed 2012-07-12)

20.  General Medical Council, Maintaining Boundaries: Guidance for Doctors. (November, 2006) (Accessed 2012-07-19); Hunt, Liz, "Sex with patients remains taboo. BMA conference: Doctors take steps to repair their tarnished image." The Independent, 28 June, 1996 (Accessed 20-12-07-19)

21.  Barilan, Y Michael, Of Doctor-Patient Sex and Assisted Suicide. IMAJ 5:460-463. June, 2003. (Accessed 2012-07-10)

22 Carter v. Canada, para. 274-277

23 Carter v. Canada, para. 233. Plaintiff witnesses: Prof. Wayne Sumner; Dr. Marcia Angell; Prof. Margaret Battin; Dr. Upshur; Dr. Gerritt Kimsma. Defendant witnesses: Prof. John Keown; Prof. Thomas Koch; Dr. Bereza.

24 Carter v. Canada, para. 238-242

25 Carter v. Canada, para. 246-247

26.  Carter v. Canada, para. 244

27 Carter v. Canada, para. 243

28 Carter v. Canada, para. 203-204, 680.

29 Carter v. Canada, para. 1370.

30.  Carter v. Canada, para. 185

31.  Carter v. Canada, para. 207-223.

32 Carter v. Canada, para. 227-230.

33 Carter v. Canada, para. 231.

34.  The deficiencies are discussed in detail in Murphy S., "Legalizing therapeutic homicide and assisted suicide:A tour of Carter v. Canada. Appendix 'C' - Carter Part VII: Postscript." Protection of Conscience Project

35 Carter v. Canada, para. 318, 320

36 Carter v. Canada, para. 163, 176; 186, 234-237, 321-322

37 Carter v. Canada, para. 177

38 Carter v. Canada, para. 278-284, 286-287

39 Carter v. Canada, para. 285

40 Carter v. Canada, para. 347

41 Carter v. Canada, para. 280

42 Carter v. Canada, para. 347

43 Carter v. Canada, para. 288-292

44 Carter v. Canada, para. 295-296, 298

45.   Prof. Sheila McLean, Prof. Jocelyn Downie, Prof. Ross Upshur, Prof. Johannes J.M. van Delden, Prof. Udo Schuklenk

46 Carter v. Canada, para. 123. The witnesses were Prof. Ross Upshur, Prof. Johannes J.M. van Delden and Prof. Udo Schuklenk. Prof. Jocelyn Downie instructed plaintiff witnesses.

47 Carter v. Canada, para. 124

48.  Couture, Linda, Results of public hearings held by The Select Committee on dying with dignity in Quebec: Briefs submitted. (15 November, 2011) (Accessed 2012-07-22)

49 Carter v. Canada, para. 290-292, 346

50.  Carter v. Canada, para. 346

51 Carter v. Canada, para. 300-307

52 Carter v. Canada, para. 355.

53 Carter v. Canada, para. 299

54.  Director of Public Prosecutions, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide. February, 2010, para. 43.14
(Accessed 2012-07-13)

55 Carter v. Canada, para. 309; 190-193

56 Carter v. Canada, para. 309

57 Carter v. Canada, para. 310

58 Carter v. Canada, para. 239

59 Carter v. Canada, para. 311. Her comment also demonstrates she shaping and limiting power of the pleadings, which exclude consideration of others whose interests might be affected by the judgement.

60 Carter v. Canada, para. 312-313

61 Carter v. Canada, para. 314-315

62 Carter v. Canada, para. 326-333

63 Carter v. Canada, para. 321-323

64 Carter v. Canada, para. 324-325

65 Carter v. Canada, para. 330

66 Carter v. Canada, para. 929

67 Carter v. Canada, para. 334

68 Carter v. Canada, para. 5

69 Carter v. Canada, para. 335

70 Carter v. Canada, para. 336-337

71 Carter v. Canada, para. 338

72 Carter v. Canada, para. 340, 357

73 Carter v. Canada, para. 5

74.  Carter v. Canada, para. 8-10, 15-18

75.  Sachedina, Abdulaziz, Islamic Biomedical Ethics: Principles and Application. Oxford: University Press, 2009, p. 166

76 Carter v. Canada, para. 350

77 Carter v. Canada, para. 171

78 Carter v. Canada, para. 351

79 Carter v. Canada, para. 343

80 Carter v. Canada, para. 345-346

81 Carter v. Canada, para. 348

82.  Carter v. Canada, para. 358. See also para. 6, 7

83.  Carter v. Canada, para. 342, 358

84.  Carter v. Canada, Christian Legal Fellowship's Written Submissions, para. 41, 44-45

85.  Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33  (Accessed 2016-01-05)

86.  Carter v. Canada (Attorney General), 2015 SCC 5 (Hereinafter "Carter, SCC"), para. 23-24 (Accessed 2015-06-27)

87.  Carter, SCC, para. 47

88.  Carter, SCC, para. 40

89.  Carter, SCC, para. 1-4

90.  Carter, SCC, para. 130-131

91.  Carter, SCC, para. 132

 

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