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*
It is beyond the scope of this paper to examine the evidence
presented at the trial in detail, something that cannot be done
without access to all of the documents and transcripts of the
proceeding. However, it is possible to summarize the judge's
findings on issues that were central to her reasoning and
determined the outcome of the case.
The latter primarily concern the question of whether or not it
is possible to establish safeguards that will prevent harms that
might flow from legalizing assisted suicide and euthanasia.
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 ruling 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 meantime, ruled that a
physician may help one of the plaintiffs to commit suicide or
provide her with therapeutic homicide. The government of Canada
appealed, and the case was ultimately settled in favour of the
plaintiffs by the Supreme Court of Canada in February, 2015.
Before considering whether or not the law against physician-assisted
suicide and euthanasia should be struck down, the judge reviewed the
"ethical debate" about assisted suicide. She did not rely upon this review
in reaching her conclusions about the constitutionality of the law, and it
was problematic for a number of reasons, so it is best characterized as
judicial dicta that does not bind other courts. Nonetheless, in this part of
the ruling one finds the ethical underpinnings that contributed to the
outcome by influencing the evaluation of evidence and legal reasoning.
The trajectory of the trial was determined by the unchallenged
fundamental premise that suicide can be an ethical 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 is not ethical. The only issue was whether or not safeguards
could be designed to permit 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 standard was required. The standard chosen was
the contemporaneous regime of end-of-life practices, since the outcome of a
mistake in this regime ('death before one's time') was 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 convince the judge that safeguards could not
be effective.
In legal argument, keeping prudent silence about morality, philosophy or
religion does not produce a morally neutral judicial forum. It simply allows
dominant moral or philosophical beliefs to set the parameters for argument
and adjudication. However, in the case of conscientious objection to
participation in assisted suicide or therapeutic homicide, an appeal to
freedom of conscience or religion must make direct reference to the beliefs
of the objector about the moral nature of the act to which he objects.
III.1 Charter of Rights claims: life, liberty, security of the person
and equality
III.2 Constitutional claim: jurisdiction over health care
III.3 Remedy sought
III.4 New plaintiff
joins case
IV.1 Summary trial process
IV.2 Overview
of the analytical method
IV.3 Burden of proof
IV.4 Standard of proof
IV.5 The evidentiary
record
V.1 Introduction
V.2 Safeguards: effectiveness, palliative care, and
physician-patient relationships
V.3 Feasibility of safeguards: risks to patients
VI.1 Suicide at common law
VI.2
The ethical underpinnings
VI.3 Finding of discrimination
VI.4 The question of justification
VI.5 Purpose of the law
VI.6 Minimal impairment: the meaning of "effective"
VI.7 Proportionality
VI.8 Life, liberty and security of the person
VIII.2 "Constitutional exemption"
A1 Overview
A2 Defendants' witnesses
A3 Plaintiffs' witnesses
A4 Assessing the evidence of the witnesses
B1 A
note of caution
B2
The question addressed in Part VII
B3
Plaintiffs' claim shapes and limits the analysis
B4 Ethics: which one?
B5 Medical ethics
B6
Ethics of society
B7
Summary of the ethical debate
B8
Conclusions about the ethical debate
B9
Carter Part VII: in brief
B10
Carter Part VII: judicial dicta on ethics
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
I.1 In June, 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.1 The lengthy
judgment of Madam Justice Lynn Smith in Carter v. Canada followed a trial in the fall of 2011.
It pertained only to cases of physician-assisted suicide or
homicide.2 She has suspended the ruling for a year to give the
government time to decide how to respond, but, in the meantime,
has ruled that a physician may help one of the plaintiffs,
Gloria Taylor, to commit suicide or provide her with therapeutic
homicide, depending upon her medical condition at the time she
wishes to die.3
The government of Canada appealed the decision,4
and the Supreme Court of Canada ultimately ruled in favour of
the plaintiffs in February, 2015. Gloria Taylor died suddenly of
natural causes a few months after the trial court ruling.5
II.1 The decision is particularly noteworthy because of the 1993
Supreme Court of Canada decision in Rodriguez v. British
Columbia (Attorney General).6 Sue Rodriguez, who had amyotrophic
lateral sclerosis ("ALS" or "Lou Gehrig's Disease"), sought to
overturn the law so that a physician could assist her in
suicide. In a 5-4 decision, the Supreme Court rejected her claim
and upheld the constitutional validity of the law against
assisted suicide. The circumstances in the Carter case
were very
similar, so the ruling raised important questions about
the doctrine of precedent, the legal rule of stare decisis: the
practice of lower courts being bound by higher courts' rulings.
II.2 The Hon. Antonio Lamer, Chief Justice of the Supreme Court
of Canada in 1993, was one of the dissenting minority who
supported Rodriguez's application. He was willing to order a
physician to assist her in suicide, but did not do so because
she had not sought such an order.7 A young lawyer named Jocelyn
Downie was a clerk for the Chief Justice at the time.8
II.3 At the time of the trial, Jocelyn Downie was a professor in the
Faculties of Law and Medicine at Dalhousie University in
Halifax, Nova Scotia. She was a Fellow of the Royal Society of Canada and the
Canadian Academy of Health Sciences, and Canada Research Chair
in Health Law and Policy.9
II.4 In a 2007 symposium at Carleton University in Ottawa,10
Professor Downie asserted that the Supreme Court of Canada might
be willing to reverse its 1993 ruling in Rodriguez. She outlined
the strategy for a legal challenge under Canada's Charter of
Rights and Freedoms (the Charter) and said that she was looking
for an ideal test case to use to strike down the law.11 She
published a paper and essay in 2008 that appear to have drawn
from her Carleton presentation. The 2007 presentation and
subsequent publication set out the strategy for the plaintiffs'
successful argument in Carter.12 Professor Downie assisted the
plaintiffs in the Carter case in instructing their expert
witnesses.13
The plaintiffs claimed that the law violates the Charter
guarantee of equality (Section 15) because able-bodied persons
can commit suicide without assistance, but disabled persons may
not be able to do so, and are thus "deprived of the ability to
choose and carry out their death in any lawful way."
III.1.1 The case began in April, 2011, with a claim filed by the
BC Civil Liberties Association (BCCLA), family physician Dr.
William Shoichet of Victoria, B.C. and Lee Carter and her
husband, Hollis Johnson. Lee Carter's 90 year old mother had
committed suicide at the Dignitas facility in Zurich,
Switzerland, in 2010, because assisted suicide was illegal in
Canada.14
III.1.2 The plaintiffs claimed that the law violated the Charter
guarantee of equality (Section 15) because able-bodied persons
could commit suicide without assistance, but disabled persons might
not be able to do so, and were thus "deprived of the ability to
choose and carry out their death in any lawful way."15 They also
argued that the law against assisted suicide violated Charter
guarantees of
"life, liberty and the security of the person" (Section 7) with
respect to the "grievously and irremediably ill" who seek
physician-assisted suicide,16 and persons wishing to assist them to
obtain that service,17 including physicians.18
III.2.1 The third legal argument advanced by the plaintiffs was
that "treatment and management of the physical and emotional
suffering of a grievously and irremediably ill patient" were
matters that fall within the "exclusive jurisdiction" of
provinicial governments, which are constitutionally mandated to
manage health care.19 Since (according to the plaintiff physician)
physician-assisted suicide and voluntary euthanasia are
"important component[s] of the provision of health care to
grievously and irremediably ill patients,"20
the lawsuit asked
that sections of the Criminal Code (a federal statute) that
prevented the provision of this "health care" should be struck
down as an unconstitutional interference in provincial
jurisdiction, "to the extent that [they] prohibit
physician-assisted dying."21
III.3.1 In short, the plaintiffs sought the court-ordered
legalization of physician-assisted suicide and euthanasia by
physicians, or by persons acting under their direction22 for
anyone "grievously and irremediably ill" (not "terminally ill").
Similarly, the BCCLA press release referred, not to terminal
illness, but to "serious illness that cannot be remedied" and
"seriously and incurably ill individuals." Though it seems that
the Association was thinking primarily of "mentally competent
adults,"23 no age restriction was indicated.24
III.4.1 63 year old Gloria Taylor formally joined the action in
August, 2011. She had been diagnosed in January, 2010 with
amyotrophic lateral sclerosis ("ALS" or "Lou Gehrig's Disease")
and had been told that she would likely die within a year. The
addition of Taylor to the case did not change the plaintiffs'
arguments, but it strengthened the claim because she was a
living person whose interests were directly affected by the
existing law.25 Her diagnosis also gave the plaintiffs the
opportunity to argue for an expedited trial.
IV.1.1 Over the objections of the governments of Canada and
British Columbia, a summary trial rather than a conventional
trial was held in November and December, 2011. A summary trial
is a proceeding in which the evidence consists largely of
affidavit evidence, legislative facts and expert opinion
evidence. The judge agreed to a modified expedited summary trial
because of Taylor's deteriorating condition and the inability of
counsel for the plaintiffs to represent them pro bono in a
lengthy conventional trial.26
IV.1.2 Interventions in support of the plaintiffs were filed by
the Farewell Foundation for the Right to Die, the Canadian
Unitarian Council and the Ad Hoc Coalition of People with
Disabilities Who are Supportive of Physician-Assisted Dying. The
Christian Legal Fellowship (CLF) and Euthanasia Prevention
Coalition (EPC) intervened in support of the absolute ban on
assisted suicide.
IV.1.3 The plaintiffs did not pursue the claim that the
prohibition of assisted suicide and euthanasia was a
federal trespass on provincial jurisdiction.27
IV.2.1 Madam Justice Smith followed the analytical method
established by precedent in adjudicating the claims of
violations of equality guarantees (Charter Section 15) and life,
liberty and security of the person (Charter Section 7).
IV.2.2 With respect to equality (Section 15)28 the following
questions are considered:
A. Is the law discriminatory? That is:
1) Does it create a distinction based on physical disability?
2) Does the distinction create a disadvantage?29
B. If the law is discriminatory, can it, nonetheless, be
demonstrably justified as a reasonable limit prescribed by law
in a free and democratic society under Section 1 of the Charter?30
That is:
3) Is the purpose pressing and substantial?
4) Are the means proportionate to the end? Specifically:
a) Is the limit rationally connected with the purpose?
b) Does the limit minimally impair the Charter right?
c) Is the law proportionate in its effect?31
IV.2.3 The analysis of alleged violations of life, liberty and
security of the person (Section 7)32
was different, but overlapped with the Section 15 analysis in
some respects:
A. Does the law deprive the plaintiff of life, liberty or
security of the person?
B. Is the deprivation in accordance with principles of
fundamental justice? Specifically:
a) Is the deprivation arbitrary?33
b) Is the law overbroad?34
c) Is the effect of the law grossly disproportionate to the
problem it addresses?35
C. Again, if the law contravenes principles of fundamental
justice, can it, nonetheless, be
demonstrably justified under Section 1 of the Charter?36
IV.2.4 There
was some dispute about the necessity of this step
(C) if
a Section 7 violation iwere demonstrated,37
but this proved to be a moot point
because the judge stated that her conclusion in this case would
be identical to her conclusion in the Section 15 analysis
(above).38
IV.3.1 With respect to equality claims under Section 15, the
burden of proof lay on the plaintiffs to show that the law was
discriminatory. Under Section 7 they had to prove that the law
deprived them of life, liberty or security of the person and
violated principles of fundamental justice.39
Madam Justice Smith
noted that, with respect to the latter, the plaintiffs must show
either that the law was not the least restrictive that could have
been chosen to achieve its purpose,40 or that it
was so extreme
that it was "disproportionate to any legitimate government
interest."41
IV.3.2 Once the plaintiffs
proved that the law is
discriminatory and/or that it improperly deprived them of life,
liberty or security of the person, the burden of proof shifted to
the government to justify the law under Section 1 of the
Charter. To uphold the law, the government had to prove that the infringement of
rights or freedoms was justified.42
IV.4.1 Neither plaintiffs nor defendants
were required to provide
"proof beyond reasonable doubt," the standard used in criminal
prosecution. All that was required was proof on the balance of
probabilities:43 that evidence
demonstrated that
something was more probably the case than not.44 Empirical evidence
was not required:
While some matters can be proved with empirical or mathematical
precision, others, involving philosophical, political an social
considerations cannot. . . It is enough that the justification
be convincing, in the sense that it is sufficient to satisfy the
reasonable person looking at all the evidence and relevant
considerations, that the state is justified in infringing the
right at stake to the degree that it has. Sauve v. Canada (Chief
Electoral Officer) 2002 SCC 68 at para. 18.45
IV.4.2 However, while empirical evidence was not required,
empirical evidence, when it exists with respect to a point in
issue, is more persuasive than other forms of evidence,
including expert opinion.
IV.5.1 The evidence received by the judge included 116
affidavits, some hundreds of pages long with secondary sources
attached as exhibits, as well as other documents, all of which
filled 36 binders. 18 witnesses were cross-examined.46 The judge
commented that the parties thoroughly reviewed the materials in
their submissions.47 She noted that Canada had been especially and
unexpectedly thorough in identifying risks associated with
legalization of assisted suicide.48 While the timelines for the
trial were tight, the defendant governments did not identify any
evidence that they had been unable to provide because of the summary
trial process.49
Madam Justice Smith reviewed the entire
evidentiary record, but does not refer to every affidavit or the
evidence of every witness in her ruling.50
V.1.1 It is beyond the scope of this paper to examine the
evidence presented at the trial in detail, something that cannot
be done without access to all of the documents and transcripts
of the proceeding. However, it is possible to summarize the
judge's findings on issues that were central to her reasoning
and determined the outcome of the case.
The latter primarily concerned the question of whether or not it
was possible to establish safeguards that would prevent harms that
might flow from legalizing assisted suicide and euthanasia.
Research findings show differing levels of compliance with the
safeguards and protocols in permissive jurisdictions. No
evidence of inordinate impact on vulnerable populations appears
in the research. Finally, the research does not clearly show
either a negative or a positive impact in permissive
jurisdictions on the availability of palliative care or on the
physician-patient relationship.
V.2.1 In Part VIII (paragraphs 359 to 747) Madam Justice Smith
reviewed the evidence concerning the practice of assisted
suicide and euthanasia and the effectiveness of
safeguards in Oregon, Washington, Belgium, the Netherlands,
Luxembourg and Switzerland.
V.2.2 With respect to compliance with safeguards, the judge
found that the process in Oregon, "is working fairly well but
could be improved,"51 and compliance in the Netherlands " is
continually improving" but not yet ideal.52 Things are clearly
less satisfactory in Belgium, where she acknowledged "low rates
of reporting. . . and high rates of LAWER (life ending acts
without explicit request)." However, she noted evidence that the
incidence of LAWER had declined since legalization of euthanasia
and assisted suicide.53
V.2.3 Concerning the effectiveness of safeguards, the judge
concluded that there was no empirical evidence that legalizing
assisted suicide and euthanasia had resulted in "a
particular risk to socially vulnerable populations" in the
Netherlands and Oregon.54 She added that the evidence did
not support the view "that pressure or coercion is at all
wide-spread or readily escapes detection" in those
jurisdictions.55 She could not reach firm conclusions about
Belgium.56
V.2.4 Summing up the evidence on the effectiveness of
safeguards, Madam Justice Smith noted that, with respect to the
Netherlands, Belgium and Oregon, "the predicted abuse and
disproportionate impact on vulnerable populations has not
materialized,"57 and, though the systems were not perfect,
"empirical researchers and practitioners who have experience in
those systems are of the view that they work well in protecting
patients from abuse while allowing competent patients to choose
the timing of their deaths."58
V.2.5 After reviewing the evidence of the impact of legal
assisted suicide and euthanasia on palliative care59 she
decided that it showed that palliative care had not been
undermined by legalization, but had in some respects improved.60
However, she was reluctant to apply the findings directly to
Canada61 and concluded only that, while legalizaton could affect
palliative care, the effect would not necessarily be negative.62
V.2.6 Similarly, she found that the evidence indicated that if
assisted suicide and euthanasia were legalized,
physician-patient relationships "would not necessarily change
for the worse," and that "the net effect could prove to be
neutral or for the good."63
V.2.7 Madam Justice Smith succinctly summarized her findings:
Research findings show differing levels of compliance with the
safeguards and protocols in permissive jurisdictions. No
evidence of inordinate impact on vulnerable populations appears
in the research. Finally, the research does not clearly show
either a negative or a positive impact in permissive
jurisdictions on the availability of palliative care or on the
physician-patient relationship.64
My review of the evidence. . . leads me to conclude that the
risks inherent in permitting physician-assisted death can be
identified and very substantially minimized through a
carefully-designed system imposing stringent limits that are
scrupulously monitored and enforced.
V.3.1 In Part IX
of the judgment (paragraphs 748 to 853) she considered the
evidence about the feasibility of safeguards and addressed the
following topics:
a) patient competence
i) general considerations (para. 762-769)
ii) cognitive impairment (para. 770-784)
iii) depression (para. 785-798)
b) voluntariness (para. 799-815)
c) informed consent (para. 816-831)
d) patient ambivalence (para. 832-843)
e) the elderly (para. 844-847)
f) the disabled (para. 848-853)
V.3.2 While acknowledging the difficulties associated with
establishing patient competence, the judge decided "that it is
feasible for properly-qualified and experienced physicians
reliably to assess patient competence . . . so long as they
apply the very high level of scrutiny appropriate to the
decision and proceed with great care."65
V.3.3 In considering the issue of voluntariness and concerns
that patients might be pressured into committing suicide, she
accepted the evidence of defendant witnesses Gallagher,
Chochinov, Heisel and Frazee concerning the subtley of
influences that can be brought to bear on patients, but also
accepted the evidence of plaintiff witnesses Ganzini and
Donnelly "that coercion and undue influence can be detected as
part of a capacity assessment."66
V.3.4 In the view of the judge, the evidence demonstrated that
the issue of informed consent presented no more difficulty in the
case of assisted suicide and euthanasia than in
seeking or refusing medical treatment.67 The conclusion is
consistent with evidence from one of the plaintiff witnesses
that "the risks and benefits of a lethal prescription are
straightforward and not cognitively complex."
This risk is that the prescription might not work; the benefit
is that the patient's life will end at a time of her choosing.68
V.3.5 With respect to patient ambivalence about dying, the judge
concluded "that it is feasible to screen out. . . patients who
are ambivalent, by assessing capacity and requiring some time to
pass between the decision and its implementation."69
V.3.6 Finally, while she recognized the elderly are vulnerable
to abuse and that the disabled "face prejudice and
stereotyping," the judge ruled "there is no evidence that the
elderly access physician-assisted dying in disproportionate
numbers in permissive jurisdictions"70 and that the risks to the
disabled can be "avoided through practices of careful and
well-informed capacity assessments by qualified physicians who
are alert to those risks."71
V.3.7 Madam Justice Smith concluded her review of the
effectiveness and feasibility of safeguards as follows:
My review of the evidence. . . leads me to conclude that the
risks inherent in permitting physician-assisted death can be
identified and very substantially minimized through a
carefully-designed system imposing stringent limits that are
scrupulously monitored and enforced.72
VI.1 Suicide at
common law
VI.1.1 That suicide can be deliberately chosen by
someone who is of sound mind has long been recognized by the
law, but the common law that came to Canada from England held
that such an act was immoral and contrary to reason.73 Subsequent changes to
the law were intended to make it more effective in preventing
suicide, not to create a right to suicide (VI.5.2).
VI.1.2 Indeed,
the majority of the Supreme Court of Canada in Rodriguez
suggested unconditional disapprobation when they observed that
one reason for prohibiting physician assisted suicide is that to
allow it "would send a signal that there are circumstances in
which the state approves of suicide."74
Consistent with this, many people continue to believe that
suicide, while not blameworthy if it results from severe mental
or emotional disorder, is immoral or unethical if deliberately
chosen, and should always be prevented.
. . .many people continue to believe that suicide,
while not blameworthy if it results from severe mental or
emotional disorder, is immoral or unethical if deliberately
chosen, and should always be prevented. The most significant
difference between their beliefs and those of Madam Justice
Smith is that her beliefs can directly shape the law, and
theirs cannot.
VI.2.1
The judge's reasoning in Carter began with the fact that
neither suicide nor attempted suicide were illegal.75
Before considering whether or not the law against
physician-assisted suicide and euthanasia should be struck down,
she reviewed the "ethical debate" about assisted suicide (Carter
Part VII: paragraphs 161-358).76
VI.2.2 The judge did not rely upon this review in reaching
her conclusions about the constitutionality of the law, and it
was problematic for a number of reasons, so it is submitted that
Part VII of the ruling has neither authority nor persuasive
force with respect to the issues in Carter (Appendix
"B" and "C"). Nonetheless, in these parts of the judgement the
judge erected the ethical falsework used in its construction.
VI.2.3 This rested on the belief that suicide could be
ethical. The logically prior discussion of the ethics of suicide
was avoided because the plaintiffs had brought a case for
assisted suicide and euthanasia77
(thus assuming the acceptability of suicide) and Madam Justice
Smith expressly adopted this approach in her analysis.78
[T]he focus is not on whether it is ethical for persons to make
a request for assistance in death. The ethics of suicide per
se are not at issue.79
VI.2.4 The ethics of suicide were not at issue only
because the judge accepted the assumption implicit in the
plaintiffs' claim: that suicide can be ethically or morally
acceptable - not that it always is, but that it can
be.80 None of the
defendants or interveners supporting the law contested that
assumption,81 even to
the limited extent of arguing that the ethics/morality of
suicide cannot be established without reference to an
ethical/moral framework provided by philosophy or religion.82
VI.2.5 The judge believed that suicide could be ethical if
it resulted from a "sound, rational and well reasoned" decision
by someone not suffering from clincial depression, mental
illness, substance abuse, trauma or similar psychosocial
factors.83 The latter
she appears to have classed as "traditionally-defined suicide,"84
- "suicide arising out of mental illness or transitory sadness."85
She agreed that it would be rational to choose suicide in order
to avoid serious future evils.86
VI.2.6 The belief that suicide can be ethical implies that
assisted suicide can be ethical. Thus, the judge said
that where suicide is ethical, the distinction between suicide
and assisted suicide "vanishes" when "the patient's decision for
suicide is entirely rational and autonomous, it is in the
patient's best interest, and the patient has made an informed
request for assistance."
The physician provides the means for
the patient to do something which is itself ethically
permissible. It is unclear, therefore, how it could be ethically
impermissible for the physician to play this role.87
VI.2.7 In addition, ethical conduct is associated with the
good, either because it is protective of certain goods or
because it involves the pursuit of them. Thus, a belief that
suicide is ethical naturally invites the conclusion that it is
beneficial: "in the patient's best interest."88
The plaintiffs asserted that suicide can be in the best interest
of a patient if it prevents or avoids needless suffering.
Indeed, the basis of their case was that the prohibition of
assisted suicide denied them a good to which they were entitled,
and to which others had access.
VI.2.8 The belief that suicide could be ethical and
beneficial effectively shifted the rhetorical burden of proof to
those opposed to assisted suicide. It put them in the position
of having to argue against allowing people access to something
that could be ethical and beneficial.89
VI.2.9 If, in circumstances in which suicide and assisted
suicide are ethical (and, thus, beneficial), the person seeking
suicide is unable to perform the lethal act even with
assistance, euthanasia in response to a request from that person
would seem to be ethical and beneficial.90
Thus,
beginning with the premise that suicide can be ethical and
beneficial, one can conclude that assisted suicide and
euthanasia can be ethical and beneficial.91
VI.2.10 This chain of reasoning can be broken between
suicide and assisted suicide. Even if suicide per se can be
ethical, it can be argued that assisting suicide is a different
kind of act because "it is action not by a person on herself but
by one person upon another."92
VI.2.11 On the basis of this distinction, it can be argued
that, whatever the ethical status of suicide, assisted suicide
is unethical if it entails harm for others or society not
entailed by suicide per se. If harm is defined, it can
also be argued that assisted suicide is unethical if it entails
the risk of harm for others or society. In either case,
however, proof of harm or risk is required to make good the
ethical argument, and it is also necessary to establish what
level of risk or harm is ethically unacceptable.
VI.2.12 This was the tack taken by the defendant governments and
interveners, and this was the focus of much of the evidence and
argument. However, the parties argued as if only points of law
and legal principle were involved. None appear to have
acknowledged that the ethical considerations noted in VI.2.10
and 11 were in play in the legal arguments and evaluation of the
evidence.
VI.2.13 That reflects part of the significance of the
ethical underpinnings of the Carter trial court ruling
described here. Like the falsework used to support a masonry
arch while the stones are being laid, it was essential in
constructing the judgement, implied in the outlines of the
finished product, invisible to those who pass through it on a
legal or political pilgrimage, and outside the spectrum of
elements identifiable as ratio in common law, though its traces
may be detected as dicta (VI.2.2).
VI.2.14 The ethical underpinning was important for another
reason. Faced with moral/ethical problems, people naturally
choose what they believe to be good, or the best among competing
goods, and reject what they believe to be evil.93
Particularly when serious moral or ethical issues are in play
(as they are when the subject is killing people or helping them
to commit suicide), a judge will either assume or construct a
moral or ethical justification that supports a decision. This is
unlikely to be articulated in argument or in the ruling, but it
may well determine the outcome by influencing the evaluation of
evidence and legal reasoning.
VI.2.15 Some support for these propositions is found in
Fleming v. Ireland & Ors (2013) IEHC 2, a decision of
the High Court of Ireland in which the court considered and
declined to follow the Carter trial court decision,
even though the court had before it much of the same evidence
and arguments of the same kind.94
VI.2.16 Fleming can be distinguished from Carter in a
number of respects, including the differences between Canadian
and Irish jurisprudence on proportionality,95
claims and counterclaims as presented,96
the quality of evidence provided by defendant witnesses97
and the acuity of government counsel, at least as reflected in
the judgement.98 Such
differences may well have contributed to the outcome.
VI.2.17 Nonetheless, the Irish court made a number of striking statements
that reflect underlying ethical views about suicide quite
different from what is found in Carter. Notably, the
Court in Fleming stated:
It is nevertheless idle to suggest that even the intentional
taking of another's life - even if this is consensual - or
actively assisting them so to do does not have objective moral
dimensions.99
VI.2.18 In the same paragraph, far from assuming that suicide
could be an ethical act or a benefit, the Court referred to
"obvious and self-evident considerations" against legalization
of assisted suicide, including "deterring suicide and anything
that smacks of the 'normalisation' of suicide."
VI.2.19 The Irish court also strongly and repeatedly emphasized
that "there is an enormous and defining difference" between
discontinuing medical treatment to allow a patient to die a
natural death and physician assisted suicide.100
VI.2.20 Considering much of the same evidence of the practice of
euthanasia and assisted suicide in Belgium, the Netherlands and
Switzerland, as well as Madame Justice Smith's discussion of the
evidence, the Court rejected her conclusions.
[W]e would simply observe in this general regard that she
herself acknowledged that compliance with essential safeguards
in the Netherlands – more than thirty years after liberalisation
- was "not yet at an ideal level." In fact, it might well be
said that this is altogether too sanguine a view and that the
fact such a strikingly high level of legally assisted deaths
without explicit request occurs . . . without any obvious
official or even popular concern speaks for itself as to the
risks involved in any such liberalisation. (Emphasis added)101
VI.2.21 Consistent with this, the Court had earlier observed
that "that relaxing the ban on assisted suicide would bring
about a paradigm shift with unforeseeable (and perhaps
uncontrollable) changes in attitude and behaviour to
assisted suicide struck the Court as compelling and deeply
worrying."102
(Emphasis added)
VI.2.22 What is of particular interest in these passages is the
stress placed on maintaining an attitude unfavourable to
assisted suicide, and on the obvious disapproval of popular and
official attitudes about potentially non-voluntary euthanasia
where euthanasia is allowed. That the Court found it "deeply
worrying" to contemplate a shift of popular opinion in favour of
assisted suicide strongly indicates an ethical outlook decidedly
unsuited to constructing a legal argument favourable to
euthanasia.
VI.2.23 There is also reason to believe that a difference in
ethical beliefs affects the evaluation of evidence and the
conclusions drawn from it. The passage above demonstrates that
the Irish court and Madame Justice Smith, relying on exactly the
same evidence, came to radically different conclusions about the
risks presented by legalization of assisted suicide and
euthanasia. Similarly, while the Irish court found the absence
of concern in Belgium and the Netherlands "deeply worrying,"
Joseph Arvay, counsel for the plaintiffs in Carter, told the
Supreme Court of Canada that the absence of concern (together
with the evidence considered in Fleming) demonstrated
that there was "no slippery slope in Belgium."103
VI.3 Finding of "discrimination"
VI.3.1
With respect to the issue of discrimination, the judge observed that the
able-bodied can (ethically) commit suicide104 without
assistance in order to relieve themselves of the burden of pain
or suffering, and are not hampered by the law in so doing. In
contrast, she said, disabled people may not be able to commit
suicide without assistance, and are thus forced to carry a
burden of pain or suffering,105 a burden she graphically
illustrated by reference to the evidence.106
She decided that the
law, though neutral on its face,107 disproportionately affected
disabled people,and thus created a distinction based on
physical disability.108
Madam Justice Smith concluded that the
distinction is discriminatory because it disadvantaged a
particular subset of persons (the disabled)109 by perpetuating and
exacerbating their disadvantages.110
VI.4.1 Having decided that the law against assisted suicide
violates the Charter guarantee of equality (Section 15) and
was
thus discriminatory, the judge asked if it could, nonetheless,
be "demonstrably justified" as a "reasonable limit" to the
rights and freedoms of disabled people.111
. . . it is the absolute nature of the prohibition against
assisted suicide that requires justification, not the
prohibition overall. In other words, the real question is
whether or not the defendants have demonstrated justification
for criminalizing the rendering of assistance in suicide to
persons such as Gloria Taylor.112
VI.4.2 The analysis here required the judge to determine whether
or not the purpose of the law is "pressing and substantial," if
the prohibition imposed by the law is "rationally connected with
the purpose", if it minimally impairs the Charter right or
freedom, and if it is proportionate in its effect.113
. . . it is not the purpose of the law to prevent
suicide by the likes of Gloria Taylor, or by absolutely
everyone. The law is meant to protect only those who might
be pressured to commit suicide or who might do so for
irrational reasons.
VI.5.1 There was some discussion about ethical principles that
inform the law. Canada was somewhat incoherent on this point. It
claimed that an ethical position is irrelevant to the legal
issues, but then said that the preservation of human life "is a
fundamental value," as if that statement had no ethical content.
In any case, it argued that the criminal law embodied the
state's interest in preserving human life by not condoning the
taking of human life.114 British Columbia suggested the principle
of "the sanctity of life" as fundamental,115 while the Christian
Legal Fellowship put forward the "inviolability principle" -
"that the intentional taking of innocent human life is always
wrong."116 Similarly, the Euthanasia Prevention Coalition stated
that "human life is intrinsically valuable and inviolable."117
VI.5.2 All of these principles could
have been applied to make the case
that suicide is always wrong or at least always undesirable, and
that the purpose of the law and goal of public policy was to
prevent all suicides. This approach would have been entirely
consistent with the origin of the law.118 It would also have been
consistent with the rationale for abolishing the offence of
attempted suicide; the law was changed try to prevent suicide
because it was thought that the
intervention of medical experts rather than magistrates would be
more effective.119
Finally, it would have been consistent with some key
statements in Rodriguez (see the italicized passages in VI.5.5).
VI.5.3 However, the judge observed that many of the defendant
witnesses "[did] not base their opinions upon the need to uphold
the sanctity of human life, or on that alone."120
None of the parties explicitly argued that the purpose of the
law was to prevent all suicides, and none addressed the morality
of suicide, probably because the subject is not one that can be
argued effectively in an environment of moral pluralism. Note,
however, that the failure to address the morality of suicide did
not produce a forum cleansed of moral beliefs. It simply allowed
the moral belief that suicide can be ethical set the
parameters for argument and adjudication.
VI.5.4 While Canada agreed that protecting vulnerable people is
one of the purposes of the law, it claimed that the law also had
other valid objectives: preventing damage to physician-patient
relationships, preventing adverse impacts on palliative care,
and preventing the spread of negative messages about the value
of human life.121
VI.5.5 "Preventing the spread of negative messages about
the value of human life" was consistent with the majority
opinion in Rodriguez, which accepted the policy of the state "that human life should not be depreciated by allowing life to
be taken." However, this and similar statements (in italics
below) were interconnected in Rodriguez with emphasis on "the
protection of the vulnerable" (underlined below):
The issue here, then, can be characterized as being whether
the blanket prohibition on assisted suicide is arbitrary or
unfair in that it is unrelated to the state's interest in
protecting the vulnerable, and that it lacks a foundation in the
legal tradition and societal beliefs which are said to be
represented by the prohibition.
Section 24l(b) has as its
purpose the protection of the vulnerable who might be induced in
moments of weakness to commit suicide. This purpose is grounded
in the state interest in protecting life and reflects the policy
of the state that human life should not be depreciated by
allowing life to be taken. . . . This is not only a policy of
the state, however, but is part of our fundamental conception of
the sanctity of human life.122
And later:
Creating an exception for the terminally ill might therefore
frustrate the purpose of the
legislation of protecting the vulnerable because adequate
guidelines to control abuse are difficult or impossible to
develop.123
And again, comparing the abolition of capital punishment to the
blanket prohibition against assisted suicide:
This prohibition [of capital punishment] is supported, in part,
on the basis that allowing the state to kill will cheapen
the value of human life and thus the state will serve in a sense
as a role model for individuals in society. The prohibition
against assisted suicide serves a
similar purpose. In upholding the respect for life,
it may discourage those who consider
that life is unbearable at a particular moment, or who perceive
themselves to be a burden upon others, from committing
suicide. To permit a physician to lawfully participate in
taking life would send a signal that there are circumstances in
which the state approves of suicide.124
VI.5.6 The judge did not ignore these considerations,125
but subtly reminded Canada that it had insisted that she was
bound to follow the Rodriguez judgement,126 and then purported to
follow Rodriguez
by rejecting the additional purposes suggested
by Canada.
VI.5.7 Citing the Supreme Court of Canada, Madame Justice Smith
stated that the purpose of legislation "should be stated as
precisely and as specifically as it can be."127
She quoted the "terse language" of Rodriguez that, she
said, "captured the very essence of the purpose" of the law:
"Section 24l(b) has as its purpose the protection of the
vulnerable who might be induced in moments of weakness to commit
suicide."128
VI.5.8 Consistent with her belief that suicide can be a rational
and moral act, the judge concluded that the sole purpose of the
law against assisted suicide is to prevent suicides by
vulnerable people who, in a moment of weakness, might succumb to
suggestions or pressures by others.129 In other words, it
was not
the purpose of the law to prevent suicide by the likes of Gloria
Taylor, or by absolutely everyone. The law was meant to protect
only those who might be pressured to commit suicide or who might
do so for irrational reasons. The judge agreed that this was a
"pressing and substantial" purpose,130 and that the means (absolute
prohibition) was rationally connected to this end.131
VI.5.9 The judge's narrow construction of the purpose of the law
reflected common ground among the parties to the case132 and the
unchallenged presumption that suicide can be a rational and
moral act. It was at the next stage of the analysis that the
differences among the parties became apparent.
. . .it appears from the text of the ruling that the
evidence of the defendants' witnesses could not match that
of the plaintiff witnesses.
VI.6.1 Once the judge decided that the law was discriminatory,
the burden of proof shifted to the defendant governments.133 It was
up to them to demonstrate that nothing short of absolute
prohibition could achieve the objective of protecting vulnerable
people, and that there was no alternative that "less seriously
infringes the Charter rights of Gloria Taylor and others in her
situation."134
VI.6.2 This is precisely what the defendants did claim. Canada,
supported by British Columbia, the CLF and EPC, argued that
"nothing short of a blanket prohibition against assisted dying
is sufficient to protect vulnerable individuals."135
VI.6.3 The defendants could
have accomplished this by demonstrating that
safeguards were ineffective in jurisdictions where assisted
suicide and euthanasia were legal, or that such
safeguards were not feasible in Canada, or, at the very least,
that the evidence was inconclusive with respect to the
effectiveness or feasibility of safeguards. However, on this
critical issue, it appears from the text of the ruling that the
evidence of the defendants' witnesses could not match that of
the plaintiff witnesses. (See Appendix "A")
VI.6.4&nbVI.6.4 There was another problem. How
was
effectiveness to be measured?
[The defendant] witnesses produced evidence of risk, and the
judge was willing to accept that evidence, but the problem was judicially
defined as one of managing or reducing risk, not eliminating it
altogether.
VI.6.5 The assertion that only blanket prohibition
could be effective rested on the premise that even one
'wrongful' death was too many:136 that safeguards could be
considered effective only if they absolutely eliminated any
possibility of error. By way of analogy, Canada asserted that
capital punishment was abolished in Canada because of concern
about the possibility of error.137
This was at least doubtful as a
matter of history138 and was not supported by the submissions of
British Columbia139 or the Supreme Court of Canada in the
Rodriguez decision.140
VI.6.6 Madam Justice Smith rejected the analogy.141 More
important, she rejected the standard of absolute inerrancy
altogether, accepting the plaintiffs' argument that this "zero
tolerance standard [is] so extreme that no claimant could ever
succeed in a challenge under the Charter."142 Instead, recalling
the narrowly construed purpose of the law, she accepted the
plaintiffs' argument that the objective of the law cannot
possibly be to prevent all 'wrongful' deaths, because 'wrongful'
deaths could occur as a result of accepted but unregulated
end-of-life practices like refusing or withdrawing treatment.143
Considering the problem strictly from the perspective of risk
management, she explained:
In my view, the evidence supports the conclusion that the risks
of harm in a regime that permits physician-assisted death can be
greatly minimized. Canadian physicians are already experienced
in the assessment of patients' competence, voluntariness and
non-ambivalence in the context of end-of-life decision-making.
It is already part of sound medical practice to apply different
levels of scrutiny to patients' decisions about different
medical issues, depending upon the gravity of the consequences.144
VI.6.7 Combined with the narrow construction of the purpose of
the law, the rejection of the "zero tolerance" standard was fatal to the defendants' case.
Their witnesses produced evidence of risk, and the judge was
willing to accept that evidence,145 but the problem was judicially
defined as one of managing or reducing risk, not eliminating it
altogether.
The scrutiny regarding physician-assisted death decisions would
have to be at the very highest level, but would fit within the
existing spectrum. That spectrum already encompasses decisions
where the likely consequence of the decision will be the death
of the patient.
146
VI.6.8 Thus, Madam Justice Smith ruled that the defendant
governments had failed to prove that the protection of
vulnerable persons could not be achieved by means less drastic
than absolute prohibition.
Permission for physician-assisted death for grievously ill and
irremediably suffering people who are competent, fully informed,
non-ambivalent, and free from coercion or duress, with stringent
and well-enforced safeguards, could achieve that objective in a
real and substantial way.147
. . ."the salutary effects of the legislation can be
preserved by leaving an almost-absolute prohibition in
effect, and permitting only stringently-limited exceptions."
VI.7.1 Granted a finding of more than minimal impairment, the
next stage in the analysis required the Court to consider the
possibility that the benefits of the law were, nonetheless, worth
the limitations imposed.148 At this stage the judge considered
Canada's claims (rejected with respect to the purpose of the
law) that absolute prohibition of assisted suicide provides
benefits that outweighed any burdens it might impose: "promoting
the value of every life, preserving life, protecting the
vulnerable, preventing abuses, maintaining the physician-patient
relationship . . . promoting palliative care," and preventing
'wrongful' deaths.149
VI.7.2 Returning to her review of the evidence, Madam
Justice Smith held that absolute prohibition of assisted suicide
had "the advantage of simplicity and clarity,"150 but that the evidence
failed to show that it clearly benefitted patients, physicians, or
palliative care.151 She speculated that there may be some benefit
to regulating a practice that occurs from time to time despite
the prohibition.152 But she was quite clear that, in her view,
absolute prohibition of assisted suicide imposed a
disproportionate burden on the disabled.153 The alleged benefits of
prohibition, she said, were experienced "by unknown persons who
may be protected" from a variety of ills, while the burdens were "experienced by persons who are in the position of Sue Rodriguez
or Gloria Taylor, and are considerable."154
VI.7.3 Ultimately, she agreed that absolute prohibition probably
had salutary effects in comparison to no prohibition,155 and
admitted that suicide and attempted suicide were "serious
public health problems."156 Nonetheless, she ruled that "the
salutary effects of the legislation can be preserved by leaving
an almost-absolute prohibition in effect, and permitting only
stringently-limited exceptions."157
. . .the prohibition of assisted suicide "has the effect of
shortening the lives of persons who fear that they will
become unable to commit suicide later, and therefore take
their lives at an earlier date than would otherwise be
necessary."
VI.8.1 The Section 7 claims of violations of liberty and
security of the person in Carter differed from those in
Rodriguez because the plaintiffs included not only Gloria
Taylor, who was seeking assisted suicide or therapeutic homicide
for herself, but Hollis Johnson and Lee Carter, who had arguably
assisted in the suicide of Lee Carter's mother, and were thus at
least theoretically liable to prosecution and imprisonment.158
VI.8.2 There was no dispute that the law against assisted
suicide engaged the liberty interests of Johnson and Carter.159
After considering objections made by Canada,160
Madam Justice
Smith ruled that the law deprived Gloria Taylor of liberty and
security of the person by interfering with her personal autonomy
and control over her bodily integrity.161
VI.8.3 Turning to the guarantee of the right to life, Canada
argued "that the right to life does not include the right to
choose death,"162 insisting that court rulings have "consistently
recognized that the right to life protects individuals from
death or the risk of death" and do not confer "a right to die."163
VI.8.4 Madam Justice Smith agreed "that the right to life is
engaged only when there is a threat of death,"164 but added
(apparently as a kind of extension of that principle) that the
prohibition of assisted suicide "has the effect of shortening
the lives of persons who fear that they will become unable to
commit suicide later, and therefore take their lives at an
earlier date than would otherwise be necessary."165
VI.8.5 Before considering whether or not the deprivations of
life, liberty and security of the person could be justified, the
judge commented briefly on the nature of the deprivations.
VI.8.6 Concerning people like Gloria Taylor, the judge
made a number of assertions.
• They would have shorter lives if they choose to kill themselves
sooner rather than take the chance that they will be unable to
have assistance later;166
• They were denied the opportunity to choose something that may
be very important to them, and "their ability to discuss and
receive support in this choice from their physicians is
impaired."167
(Particularly in light of evidence before the court of
physician opposition to assisted suicide, it is remarkable that
the judge made the assumption that their physicians would always
be supportive.)
• The physically disabled were denied the autonomy of the
able-bodied, and thus "deprived of a measure of self-worth."168
• Palliative care may be unavailable or unacceptable, so that
they may continue to experience pain and suffering.169
• They sufferere stress because they are unable to have the comfort
of knowing that assisted suicide or euthanasia will be
available if they so choose.170
VI.8.7 The judge
concluded that the absolute prohibition of assisted suicide
violated Gloria Taylor's right to life "because it may shorten
her life."
Ms. Taylor's reduced lifespan would occur if she concludes that
she needs to take her own life while she is still physically
able to do so, at an earlier date than she would find necessary
if she could be assisted.171
VI.8.8 The possibility that a law is arbitrary
was the first
point to consider in determining whether or not such
deprivations are in accordance with the principles of
fundamental justice. Since the Supreme Court had decided in
Rodriguez that the law is not arbitrary, the judge accepted that
ruling.172
VI.8.9 The concept of "overbreadth" re-states in a slightly
different form the principle of minimal impairment, with the
burden of proof on the plaintiffs, not the defendants. The
plaintiffs must prove "that the blanket prohibition is broader
than is necessary to achieve the state's goal of preventing
vulnerable persons from being induced, in moments of weakness,
to commit suicide."173 The judge's analysis on this point was
essentially the same as her reasoning on "minimal impairment,"
discussed above. She reiterated her findings that the evidence
• did not demonstrate that physicians were insufficiently
skilled at assessing patients;174
• did not demonstrate that, where assisted suicide and
therapeutic homicde were legal, that patients were abused, that
physicians had become careless or callous, or that a "slippery
slope" existed;175
• did not demonstrate that assisted suicide and euthanasia
were inconsistent with medical ethics;176
• supported the conclusion that a "very small number" of cases of
assisted suicide and euthanasia occur despite
prohibition, and the belief that legalizing and strictly
regulating the procedures "would probably greatly reduce or even
eliminate such deaths."177
VI.8.10 Finally, Madam Justice Smith ruled that the adverse
effects of the absolute prohibition of assisted suicide were "grossly disproportionate to its effect on preventing the
inducement of vulnerable people to commit suicide, promoting
palliative care, protecting physician-patient relationships,
protecting vulnerable people, and upholding the state interest
in the preservation of human life."178.
VII. The declaration of invalidity
VII.1 In consequence of her legal analysis, Madam
Justice Smith declared that the "impugned provisions" of the law
unjustifiably infringed Sections 7 and 15 of the Charter of
Rights and were of no force and effect to the extent that
they prevented physicians from providing assisted suicide and
euthanasia to a certain class of patients.179
VII.2 Joseph Arvay, counsel for the plaintiffs, subsequently
told the Supreme Court of Canada that the trial court judge had
concluded, on the basis of "a massive amount of evidence," that
it was ethical for physicians to provide euthanasia and assisted
suicide.180 Moreover, he claimed that, having considered the
evidence "of ethicists and philosophers and physicians and
practitioners," 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.181
VII.3 However, neither of these claims
is supported by the text of the decision. The discussion of the
ethics of physician assisted suicide and euthanasia, comprising
Part VII of the judgement (paragraphs 161 to 358) did not enter
into the analysis that led to declaration of invalidity (See
Appendices "B" and "C") .
VII.4 Madame Justice Smith introduced her
ruling with a summary of the findings of fact182
and legal reasoning.183
Far from offering the conclusions claimed by Mr. Arvay, the
trial court judge actually stated that opinion was divided about
the comparative ethical nature of contemporaneous end-of-life
practices and euthanasia and assisted suicide, and that medical
practitioners, professional bodies, government committees and
the public were divided in their opinions. The whole of Part VII
could be removed from the judgement without affecting the legal
analysis and conclusions in Parts XI, XII and XIII.
VII.5 In short, the judge's statements in Part
VII were judicial dicta that provide neither authority nor even
persuasive weight for Mr. Arvay's extravagant claims (Appendix
"B").
VIII. The remedy
VIII.1 Madame Justice Smith's description of
the circumstances and the class of patients to whom the ruling
would apply effectively set out her criteria for eligibility for
physician assisted suicide and euthanasia.184
a) Only medical practitioners may provide assisted suicide or
euthanasia;
b) Assisted suicide and euthanasia may be provided
only within the context of a physician-patient relationship;
c) The patient must make the request personally, not through
someone else;
d) The patient must be
i) an adult,
ii) fully informed, non-ambivalent, and competent,
iii) free from coercion and undue influence, not clinically
depressed;
e) The patient must be diagnosed by a medical practitioner as
having a serious illness, disease or disability (including
disability arising from traumatic injury)
i) that is without remedy acceptable to the patient,
ii) that causes enduring physical or psychological suffer that
is intolerable to the patient and that cannot be alleviated by
any medical treatment acceptable to the patient;
f) The patient must be in a state of advanced weakening
capacities with no chance of improvement.
That Madam Justice Smith should authorize a physician
to falsify a death certificate seems markedly inconsistent
with her repeated insistence upon the importance of
"stringent limits that are scrupulously monitored and
enforced."
VIII.2.1 The judge suspended the application of her declaration
for a year to give the government time to decide how to respond.185
In the meantime, she granted a "constitutional exemption" to
Gloria Taylor and her physician so that she can seek assisted
suicide or euthanasia while the ruling has been
suspended.
VIII.2.2 The conditions and procedure set by the court provide
some insight into the process of legal assisted suicide and
therapeutic homicide envisaged by the judge.
VIII.2.3 The conditions:186
a) The request must be made in writing by Ms. Taylor.
b) Her attending physician must attest (the context throughout
suggests that the attestation must be written) that she is
"terminally ill and near death, and there is no hope of
recovering." The references to terminal illness and nearness to
death depart from the terms of the declaration of invalidity.
c) The attending physician must attest that Ms. Taylor has been
informed of her diagnosis and prognosis and of feasible
treatment options and palliative care options.
d) Ms. Taylor must be referred to a palliative care specialist
for consultation.
e) Ms. Taylor must be advised that she has a continuing right to
change her mind.
f) Both attending physician and a consulting psychiatrist must
attest that Ms. Taylor is competent, non-ambivalent and acting
voluntarily. Should either decline to do so, that must be made
known to physicians and psychiatrists subsequently involved and
to the court.
g) The attending physician must attest to the kind and amount of
medication to be used for assisted suicide or euthanasia.
h) Unless Ms. Taylor is physically incapable, "the mechanism for
the physician-assisted death shall be one that involves her own
unassisted act and not that of any other person."
VIII.2.4 The procedure:187
a) Ms. Taylor must apply to the British Columbia Supreme Court
and prove that the conditions set out above have been met.
b) The
Court, if satisfied, will issue an order authorizing a physician
to "legally provide Ms. Taylor with a physician-assisted death
at the time of her choosing" as long as, at that time, she is
"suffering from enduring and serious physical or psychological
distress that is intolerable to her and that cannot be
alleviated by any medical or other treatment acceptable to her."
c) She must also be competent and "voluntarily seeking a
physician-assisted death."
VIII.2.5 The final element of the order is of particular
interest. Madam Justice Smith ruled that the court should also
authorize the physician who assists the suicide or provides
euthanasia to "complete her death certificate
indicating death from her underlying illness as the cause of
death."188
VIII.2.6 That Madam Justice Smith authorized a physician
to falsify a death certificate seems markedly inconsistent with
her repeated insistence upon the importance of "stringent limits
that are scrupulously monitored and enforced."189 The rationale for
this appears to have been articulated by one of the plaintiffs
witnesses:
Dr. Nancy Crumpacker, a retired oncologist . . . says that it is
the common, if not invariable, practice of physicians who fill
out the death certificates of persons who hasten their deaths
under the ODDA190 to record the underlying illness as the cause of
the death. This is done to protect patient confidentiality and
to avoid any confusion with settlements from insurance
companies. Completing the death certificate in this manner is
not inconsistent with the legislation, as s. 3.14 of the ODDA
provides that actions taken in accordance with it do not
constitute suicide or homicide for any purposes. Section 3.13
additionally provides that "[n]either shall a qualified
patient's act of ingesting medication to end his or her life in
a humane and dignified manner have an effect upon a life,
health, or accident insurance or annuity policy.191
VIII.2.7 Whether justification is sought in patient
confidentiality, statute or a judicial order, the falsification
of the cause of death (and, presumably, the falsification of the
classification of death) was contrary to death reporting and
classification practices in British Columbia193 and internationally158
and likely to produce confusion rather than transparency.
VIII.2.8 It is remarkable that, having concluded that assisted
suicide and therapeutic homicide were justifiable in the
circumstances set out in the judgement, Madam Justice Smith
should feel it necessary to authorize physicians to falsify
death certificates.
IX.1 The trajectory of the trial was determined by the
unchallenged fundamental premise that suicide can be an ethical 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
is not ethical.
IX.2 Since, on this understanding, the vulnerable are not to
be protected against something that is always wrong, but
something that they might, in some circumstances, legitimately
pursue, it was natural to search for a means to permit those
legitimately seeking assisted suicide to obtain the service in
those circumstances.
IX.3 The only issue was whether or not safeguards could be
designed to permit legitimate access to assisted suicide in
appropriate circumstances, while
preventing the vulnerable from accessing it in moments of
weakness.
IX.4 Since perfection is not to be expected in any human
endeavour, it was not thought reasonable to demand that a system
of safeguards be 100% effective. A different standard was
required.
IX.5 The standard chosen was the contemporaneous regime of end-of-life
practices, since the outcome of a mistake in this regime ('death
before one's time') was the same as the outcome of a mistake in
regulating assisted suicide.
IX.6 The argument advanced was, in effect, that one cannot
reasonably demand a higher standard of safety in the delivery of
assisted suicide than in the delivery of palliative care because
the results of a mistake in either case are the same.
IX.7 Patient safety in end-of-life care was ensured
by respect for and enforcement of the principle of informed
consent, by assessment of patient competence, and by the use of
legal substitute decision-makers for incompetent patients. Since
these measures were considered sufficient for the purposes of
end-of-life decisions in withholding, withdrawing or refusing
treatment, it was decided that (proxy decision-making excepted)
they should be sufficient for the regulation of assisted suicide
for competent adults.
IX.8 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 cannot be effective.
. . .keeping silent about morality, philosophy or religion
does not produce a morally neutral judicial forum or public
square. It simply allows dominant moral or philosophical
beliefs to set the parameters for argument and adjudication.
X.1 About ten days after the Carter decision was released, the
CBC Radio's Cross Country Checkup dedicated a full programme to
the subject. The interviewer spoke by telephone with invited
guests, including Professor Jocelyn Downie, one of the
architects of the plaintiffs' case, and Dr. Eugene Bereza, a
defendant witness. She also spoke to listeners from across the
country who called in to voice their opinions.194
X.2 Most of those who opposed the decision argued, as the
defendant governments did at trial, that the risks associated
with legalizing assisted suicide and euthanasia were too great:
that to do so would endanger vulnerable people. When the
interviewer asked these people if they would take away from
Gloria Taylor what the court had given her - the right to
physician-assisted suicide at the time of her choosing - all
avoided the question. Not one was willing to state that Gloria
Taylor should not be provided assisted suicide, though none said
that it was a good thing or that they supported her choice.
X.3 They had argued against legalizing assisted suicide solely
because vulnerable people might be exploited if it were: that no
regulatory process could adequately protect them. But Gloria
Taylor could not be plausibly described as a vulnerable and
exploited person, so they could not explain why, in her case,
assisted suicide should not be permitted, And if they could
think of no reason to deny it to her, upon what basis would they
deny it to others?
X.4 Had they argued from the outset against suicide and
homicide on moral, philosophical or religious grounds (though
not excluding others), they might have been able to answer
differently. But, like the government defendants, they did not
do so, either because their objections were purely practical or
logistical, or because they believed - probably correctly - that
moral, philosophical or religious would be abruptly dismissed,
either with contempt, or with condescension.
X.5 When facing a court in a case like Carter - the Supreme
Court or the court of public opinion - perhaps it is prudent and
even necessary to avoid arguments based on moral, philosophical
or religious principles that are likely to excite adverse
responses and even intolerant passions in those who will pass
judgement. On the other hand, as noted above, keeping silent
about morality, philosophy or religion does not produce a
morally neutral judicial forum or public square. It simply
allows dominant moral or philosophical beliefs to set the
parameters for argument and adjudication.
X.6 In the case of conscientious objection to
participation in assisted suicide or therapeutic homicide,
silence about one's moral, religious or philosophical beliefs is
impossible. An appeal to freedom of conscience or religion must
make direct reference to the beliefs of the objector about the
moral nature of the act to which he objects.