Protection of Conscience Project
Protection of Conscience Project
Service, not Servitude

Service, not Servitude

Legalizing therapeutic homicide and assisted suicide

A tour of Carter v. Canada

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

Sean Murphy*

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In 2012 a British Columbia Supreme Court Justice struck down Canada's absolute ban on assisted suicide as well as the rule that one cannot legally consent to be murdered. The decision pertained only to cases of physician-assisted suicide or homicide. She suspended the ruling for a year to give the government time to decide how to respond, but, in the interim, ruled that a physician could help one of the plaintiffs to commit suicide or provide her with therapeutic homicide. The decision was ultimately appealed to the Supreme Court of Canada and decided in the fall of 2014.

The trajectory of the trial was determined by the fundamental premise that suicide can be a rational and moral act, and that the sole purpose of the law against assisted suicide was to prevent suicides by vulnerable people in moments of weakness, who might be tempted to commit suicide that was not rational and moral. The premise that suicide could be acceptable was not challenged by the defendant governments or interveners supporting them, probably because they believed that the subject was not one that could be argued effectively in a judicial environment permeated by secularism and moral pluralism. However, the failure to address the morality of suicide did not produce a morally neutral judicial forum. It simply allowed the moral belief that suicide could be acceptable to set the parameters for argument and adjudication.

The only issue was whether or not safeguards could be designed to permit legitimate access to assisted suicide, while preventing the vulnerable from accessing it in moments of weakness. It was not thought reasonable to demand that a system of safeguards be 100% effective. A different model was required. The model chosen was the regime of accepted end-of-life practices, since the outcome of a mistake ('death before one's time') would be the same as the outcome of a mistake in regulating assisted suicide.

Patient safety in end-of-life care was ensured by the principle of informed consent, assessment of patient competence, and the use of legal substitute decision-makers for incompetent patients. Since these measures were considered sufficient for the purposes of withholding, withdrawing or refusing treatment, it was decided that they should be sufficient for the regulation of assisted suicide for competent adults.  The burden of proof was on the defendant governments to prove that this could not be done. The text of the ruling indicates that they provided evidence of risk, but failed to prove that safeguards could not be effective.

Joseph Arvay, counsel for the plaintiffs, subsequently told the Supreme Court of Canada that the trial court judge had concluded that it was ethical for physicians to provide euthanasia and assisted suicide. Moreover, he claimed that she had found that there was “no ethical distinction” between withdrawing/withholding life saving treatment on the one hand, and euthanasia/assisted suicide on the other.

Neither of these claims is supported by the text of the decision. The review was unsatisfactory because much that was necessary to understand the ethical issues and controversies associated with end-of-life practices was lacking. Further, nothing in Part VII was essential to the judge’s decision about the constitutionality of the law. Part VII is obiter dicta; it could have been left out without affecting the outcome of the case. Other courts are not bound to adhere to or defer to it, and, in view of the shortcomings in the analysis, it is without persuasive weight.

Nonetheless, Justice Smith’s review of ethical issues in Part VII of the ruling is of interest because it was there that the judge erected the ethical falsework that influenced evaluation of the evidence and legal reasoning.

I.    The decision, appeal  and implementation
II.    Legal background
III.    The litigation
IV.    The trial
V.    Judge’s review of the evidence
VI.    The legal analysis
VII.    The declaration of invalidity
VIII.    The remedy
IX.    Summary
X.    Postscript
The Witnesses
Carter Part VII: Judicial Dicta on Ethics
Carter Part VII: Filling in the Blanks

C1.    Introduction

C2.    Patient autonomy: the distinction between legal and ethical evaluation

C3.    Withdrawal and refusal of assisted nutrition and hydration

C4.    Palliative sedation

C5.    Proportionality of interventions

C6.    Intention

C7.    Summary