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*

I.    The decision, appeal  and implementation

I.1    In June, 2012, Justice Lynn Smith of the British Columbia Supreme Court 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, which followed a trial in the fall of 2011, pertained only to cases of physician-assisted suicide or homicide.2 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, Gloria Taylor, to commit suicide or provide her with therapeutic homicide, depending upon her medical condition at the time she wished to die.3 Taylor died of natural causes four months later.4

I.2    In June, 2014, as the trial court decision was making its way to the Supreme Court of Canada, Quebec effectively legalized euthanasia by physicians, relying on its constitutional jurisdiction over the provision of health care.  Quebec could not, in fact, override the criminal prohibition of euthanasia and assisted suicide, since criminal law in Canada is exclusively within the jurisdiction of the federal government.  However, provincial governments are constitutionally responsible for enforcing criminal law and prosecuting criminal offences.  The Quebec government promised that it would not prosecute physicians who provided euthanasia in accordance with the provincial law, thus circumventing the criminal prohibition.5 

 I.3    Justice Smith's decision was ultimately upheld in a unanimous ruling by the Supreme Court of Canada in the fall of 2014.  The ruling exempted physicians from prosecution for assisted suicide, murder and related offences in circumstances defined by the Court.  The Supreme Court suspended its judgement for one year to give the federal and provincial governments time to amend legislation and plan for implementation of the new euthanasia/assisted suicide (EAS) regime.6 The regulation of health care professions and institutions and delivery of EAS are within the constitutional jurisdiction of Canadian provinces, subject to criminal law, which is within federal jurisdiction.7  It was expected that the federal government would amend the Criminal Code to conform to the Supreme Court ruling and that provinces would follow by amending their legislation.  However, the federal government under Conservative Prime Minister Steven Harper seems to have done nothing for five months. It appointed a three member panel in July, 2015,8 but delayed panel consultations until late October by calling a federal election. 

I.4    In the absence of action by the federal government, others took the initiative.  The Canadian Medical Association approved a procedural framework for EAS that included a protection of conscience provision acceptable to groups representing objecting physicians.9  A nine member Expert Advisory Group formed under the auspices of the Ontario government produced a report adverse to the exercise of freedom of conscience by objecting individuals and institutions.10 By the time the Experts made their report, the Conservatives had lost the federal election to the Liberals. The new Liberal government under Prime Minister Justin Trudeau could not amend the Criminal Code before the deadline set by the Supreme Court, so it obtained a six month extension of the suspension of the Court's judgement.11  Outside Quebec (where the provincial euthanasia law had come into force) EAS could be obtained during the extension by making an application to a superior court.  The first iteration of the Criminal Code amendments implementing the Carter decision became law in June, 2016.12

II. Legal background

II.1    The decision was particularly noteworthy because of the 1993 Supreme Court of Canada decision in Rodriguez v. British Columbia (Attorney General).13 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 that requires lower courts to follow higher courts' rulings.

II.2    Then Supreme Court Chief Justice Antonio Lamer was one of the dissenting minority who supported Rodriguez's application. He was apparently willing to authorize a physician to assist her in suicide, but did not do so because she had not sought such an order.14 A young lawyer named Jocelyn Downie was a clerk for the Chief Justice at the time.15  By the time of the Carter trial court ruling she was a professor in the Faculties of Law and Medicine at Dalhousie University in Halifax, Nova Scotia, a Fellow of the Royal Society of Canada and the Canadian Academy of Health Sciences, and Canada Research Chair in Health Law and Policy.16  Four years earlier she had co-authored a paper setting out a strategy for reversing Rodriguez17 that informed the plaintiffs' successful argument in Carter. Professor Downie assisted the plaintiffs in the Carter case in instructing their expert witnesses.18

III.    The litigation

III.1    Charter of Rights claims: life, liberty, security of the person and equality

III.1.2    The plaintiffs claimed that the law violated the guarantee of equality in s. 15 of the Canadian Charter of Rights and Freedoms (the Charter)20 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."21 They also argued that the law against assisted suicide violated Charter guarantees of "life, liberty and the security of the person" (s. 7) with respect to the "grievously and irremediably ill" seeking physician-assisted suicide22 and persons wishing to assist them to obtain that service,23 including physicians.24

III.2    Constitutional claim: jurisdiction over health care

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 fell within the "exclusive jurisdiction" of provinicial governments, which were constitutionally mandated to manage health care.25 Since (according to plaintiff physician Dr. Soichet) physician-assisted suicide and voluntary euthanasia were "important component[s] of the provision of health care to grievously and irremediably ill patients,"26 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," — defined by the plaintiffs to include physician-administered euthanasia and physician-assisted suicide.27  The "impugned provisions" included those rendering persons "criminally liable for aiding or counselling . . . or otherwise render someone a party to a criminal offence for arranging, supporting or otherwise participating in physician-assisted dying."28

III.3    Remedy sought

III.3.1    In short, the plaintiffs sought the court-ordered legalization of physician-assisted suicide and physician-administered euthanasia, or by persons acting under their direction for anyone "grievously and irremediably ill" (not "terminally ill").29 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,"30 no age restriction was indicated.31

III.4    New plaintiff joins case

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 advised 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.32 Her diagnosis also gave the plaintiffs the opportunity to argue for an expedited trial.

IV.    The trial

IV.1    Summary trial process

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.33

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.34

IV.2    Overview of the analytical method

IV.2.1    Justice Smith followed the analytical method established by precedent in adjudicating the claims of violations of constitutional guarantees of equality and life, liberty and security of the person.

IV.2.2    With respect to equality (Charter s. 15) the following questions were 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?35

B. If the law is discriminatory, can it, nonetheless, be demonstrably justified under Charter s. 1 as a reasonable limit prescribed by law in a free and democratic society? 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?36

IV.2.3    Some aspects of the analysis of alleged violations of life, liberty and security of the person (Charter s. 7) overlapped with the s. 15 analysis:

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?37

b) Is the law overbroad?38

c) Is the effect of the law grossly disproportionate to the problem it addresses?39

C. Again, if the law contravenes principles of fundamental justice, can it, nonetheless, be demonstrably justified under Charter s. 1?

IV.2.4    There was some dispute about the necessity of this step (C) if a s. 7 violation were demonstrated, but this was a moot point because the judge stated that her conclusion would be identical to her conclusion in the s. 15 analysis (above).40

IV.3    Burden of proof

IV.3.1    With respect to equality claims under Charter s. 15, the burden of proof lay on the plaintiffs to show that the law was discriminatory. Under Charter s. 7 they had to prove that the law deprived them of life, liberty or security of the person and violated principles of fundamental justice.41 Justice Smith noted that, with respect to the latter, the plaintiffs had to show either that the law was not the least restrictive that could have been chosen to achieve its purpose,42 or that it was so extreme that it is "disproportionate to any legitimate government interest."43

IV.3.2    Once the plaintiffs had proved that the law was discriminatory and/or that it improperly deprived them of life, liberty or security of the person, the burden of proof shifted to the government.  It had to prove that the infringement of rights or freedoms was demonstrably justifiable "in a free and democratic society" (Charter s. 1).44

IV.3.3    Subsequently, the Supreme Court of Canada clarified that, once the plaintiffs had proved that a law violates principles of fundamental justice, the burden of proof shifts to the government to prove under Charter s.1 that the law is not minimally restrictive or disproportionate. This was advantageous to the plaintiffs when the trial court decision reached the Supreme Court of Canada in 2014.45

IV.4    Standard of proof

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:46 that a party produce evidence to show that something is more probably the case than not.47 Empirical evidence is 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. 48

IV.4.2    However, while empirical evidence is not required, empirical evidence, when it exists with respect to a point in issue, will be more persuasive than other forms of evidence, including expert opinion.

IV.5    The evidentiary record

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.49 The judge commented that the parties thoroughly reviewed the materials in their submissions.50 She noted that Canada had been especially and unexpectedly thorough in identifying risks associated with legalization of assisted suicide.51 While the timelines for the trial were tight, the defendant governments did not identify any evidence that they were unable to provide because of the summary trial process.52 Justice Smith reviewed the entire evidentiary record, but did not refer to every affidavit or the evidence of every witness in her ruling.53

V.    Judge's review of the evidence

V.1    Introduction

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, primarily whether it was possible to establish safeguards that would prevent harms that might flow from legalizing assisted suicide and euthanasia.

V.2    Safeguards: effectiveness, palliative care, and physician-patient relationships

V.2.1    In Part VIII (paragraphs 359 to 747) 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 was "working fairly well but could be improved,"54 and compliance in the Netherlands was "continually improving" but not yet ideal.55 Things were 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.56

V.2.3    Concerning the effectiveness of safeguards, the judge concluded that there was no empirical evidence that legalizing assisted suicide and euthanasia had led to "a particular risk to socially vulnerable populations" in the Netherlands and Oregon.57 She added that the evidence "does not support the conclusion that pressure or coercion is at all wide-spread or readily escapes detection" in those jurisdictions.58 She found it difficult to reach a "firm conclusion" about Belgium, but noted evidence that elderly patients and patients with diseases of the nervous system were not proportionately at greater risk of LAWER.59

V.2.4    Summing up the evidence on the effectiveness of safeguards, Justice Smith noted that, with respect to the Netherlands, Belgium and Oregon, "the predicted abuse and disproportionate impact on vulnerable populations has not materialized,"60 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."61

V.2.5    After reviewing the evidence of the impact of legal assisted suicide and euthanasia on palliative care62 she decided that it showed that palliative care had not been undermined by legalization, but had in some respects improved.63 However, she was reluctant to apply the findings directly to Canada64 and concluded only that, while legalization could affect palliative care, the effect would not necessarily be negative.65

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."66

V.2.7    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.67

V.3    Feasibility of safeguards: risks to patients

V.3.1    In Part IX (paragraphs 748 to 853) the judge 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 ensuring that patients were competent to decide to seek assisted suicide or euthanasia, 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."68

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."69

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.70 The conclusion was consistent with evidence from one of the plaintiff witnesses that "the risks and benefits of a lethal prescription are straightforward and not cognitively complex . . . The risk is that the prescription might not work; the benefit is that the patient's life will end at a time of her choosing."71

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."72

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"73 and that the risks to the disabled could be "avoided through practices of careful and well-informed capacity assessments by qualified physicians who are alert to those risks."74

V.3.7    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.75

VI.    The legal analysis

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.76 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).  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."77 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.

VI.2    Ethical underpinnings

VI.2.1    The judge's reasoning in Carter began with the fact that neither suicide nor attempted suicide were illegal.78 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).79

VI.2.2    Contrary to claims later made by lead appellant counsel Joseph Arvay at the Supreme Court of Canada,80 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 (see Appendix “B” and “C”).  It is here submitted that Part VII of the ruling has neither authority nor persuasive force with respect to the issues in Carter.

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 euthanasia81 (thus assuming the acceptability of suicide) and Justice Smith expressly adopted this approach in her analysis.

[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.82

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.83

VI.2.5    None of the defendants or interveners supporting the law contested contested the premise that suicide can be rational and moral, 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.84

VI.2.6    Unexpressed disagreement was perhaps implicit in at least some of the more generic statements, such as those offering support for “the sanctity of life” (British Columbia)85 the “inviolability principle” (Christian Legal Fellowship)86 and the assertion that “human life is intrinsically valuable and inviolable” (Euthanasia Prevention Coalition).87 The nearest approach to a challenge appears to have come in a later part of the case from Canada, which asserted that “suicide is not a fundamental institution” and emphasized that “suicide is not condoned, let alone recognized as a legal right.”88 However, Canada also argued that disabled people were not disadvantaged by the prohibition of assisted suicide because they could still commit suicide “by refusing treatment, hydration or nutrition,” which implied that suicide could be considered advantageous.89

VI.2.7    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.90 The latter she appears to have classed as "traditionally-defined suicide,"91 - "suicide arising out of mental illness or transitory sadness."92 She agreed that it would be rational to choose suicide in order to avoid serious future evils.93

VI.2.8    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.94

VI.2.9    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." The plaintiffs asserted that suicide can be in the best interest of a patient if it prevents or avoids needless suffering.95 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.2.10    The premise 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.  This may explain, in part, why Professor Margaret Somerville, upon reading the judgement, was left with “a strong impression that [the judge] is far from neutral about physician-assisted suicide and euthanasia” and that she favoured the interventions in some cases.96

VI.2.11    If, in circumstances in which suicide and assisted suicide are ethical (and, thus, beneficial), the person seeking suicide were 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.97 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.  This ethical equivalence was arguably implicit in the plaintiff’s definition of “assisted dying,” which included both assisted suicide and voluntary euthanasia98 and which was adopted by Justice Smith.99

VI.2.12    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."100

VI.2.13    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. 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, harm must be defined, and proof of harm or risk is required to make good the ethical argument.  It is also necessary to establish what level of risk or harm is ethically unacceptable. 

VI.2.14     That was the tack taken by the defendant governments and interveners and the focus of much of the evidence and argument.  However, the effect of the premise that suicide can be moral and rational (and thus beneficial, not harmful) escaped the notice of the parties as they argued points of law and legal principle, and none appear to have recognized that it was in play in the legal arguments and evaluation of the evidence.  This 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 and implied in the shape of the finished product.

VI.2.15     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.101 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.  In Carter the traces of this are found in Part VII, where the judge erected the ethical falsework used in the construction of the judgement.

Fleming v Ireland & Ors

VI.2.17    That this happened in the Carter trial court is supported by a review of Fleming v Ireland & Ors, a 2013 decision in which the High Court of Ireland considered but declined to follow the Carter trial court decision.102

VI.2.18    Arguing in the Carter appeal at the Supreme Court of Canada, Joseph Arvay claimed that the Irish High Court had reached a different conclusion because “there was either no evidence or very little evidence, and indeed, whatever evidence there was was a fraction of the evidence that was before the [Carter] trial judge.”103 However, the Irish High Court stated that “detailed evidence available to us” demonstrated “an ample evidential basis” to support absolute prohibition of assisted suicide, and that, in reviewing the Carter trial court decision, it had “reviewed the same evidence and . . . drawn exactly the opposite conclusions.”104

VI.2.19    Fleming can be distinguished from Carter in a number of respects, including the differences between Canadian and Irish jurisprudence on proportionality,105 claims and counterclaims as presented,106 the quality of evidence provided by defendant witnesses107 and the acuity of government counsel, at least as reflected in the judgement.108 Such differences may well have contributed to the outcome.

VI.2.20    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.109

VI.2.21    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."110

VI.2.22    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.111

VI.2.23    Considering evidence of the practice of euthanasia and assisted suicide in Belgium, the Netherlands and Switzerland, as well as 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)112

VI.2.24    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."113 (Emphasis added)

VI.2.25    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.2.26    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  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."114

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 suicide115 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,116 a burden she graphically illustrated by reference to the evidence.117  She decided that the law, though neutral on its face,118  disproportionately affected disabled people,and thus created a distinction based on physical disability.119 Justice Smith concluded that the distinction is discriminatory because it disadvantaged a particular subset of persons (the disabled)120 by perpetuating and exacerbating their disadvantages.121

VI.4    The question of justification

VI.4.1    Having decided that the law against assisted suicide violates the Charter guarantee of equality (s. 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.122

[I]t 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.123

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.124

VI.5    Purpose of the law

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.125 British Columbia suggested the principle of "the sanctity of life" as fundamental,126 while the Christian Legal Fellowship put forward the "inviolability principle" - "that the intentional taking of innocent human life is always wrong."127 Similarly, the Euthanasia Prevention Coalition stated that "human life is intrinsically valuable and inviolable."128

VI.5.2    All of these principles could have been applied to make the case that suicide was 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.129 It would also have been consistent with the rationale for abolishing the offence of attempted suicide; the law was changed because it was thought that the intervention of medical experts rather than magistrates would be more effective in preventing suicide.130 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."131 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 was not one that can be argued effectively in a judicial environment permeated by secularism and 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 could be acceptable 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.132

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.133

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.134

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.135

VI.5.6    The judge did not ignore Canada's argument,136 but subtly reminded Canada that it had insisted that she was bound to follow the Rodriguez judgement,137 and then purported to follow Rodriguez by rejecting the additional purposes suggested by Canada.

VI.5.7    Citing the Supreme Court of Canada, Justice Smith stated that the purpose of legislation "should be stated as precisely and as specifically as it can be."138 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."139

VI.5.8    Consistent with her belief that suicide could be a rational and ethical act, the judge concluded that the sole purpose of the law against assisted suicide was to prevent suicides by vulnerable people who, in a moment of weakness, might succumb to suggestions or pressures by others.140 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 and might do so for irrational reasons. The judge agreed that this was a "pressing and substantial" purpose,141 and that the means (absolute prohibition) was rationally connected to this end.142

VI.5.9    The judge's narrow construction of the purpose of the law reflected common ground among the parties in the case143 and the presumption - unchallenged by any of them - that suicide can be an acceptable act. It was at the next stage of the analysis that the differences among the parties became apparent.

VI.6    Minimal impairment: the meaning of "effective"

VI.6.1    Once the judge decided that the law was discriminatory, the burden of proof shifted to the defendant governments.144 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 would "less seriously [infringe] the Charter rights of Gloria Taylor and others in her situation."145

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."146

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    There was another problem. How was "effectiveness" to be measured?

VI.6.5    The assertion that only blanket prohibition could be effective rested on the premise that even one 'wrongful' death147 was too many: that safeguards could be considered effective only if they absolutely eliminated any possibility of error.148 By way of analogy, Canada asserted that capital punishment was abolished in Canada because of concern about the possibility of error.149 This was at least doubtful as a matter of history.150 The claim was not supported by the submissions of British Columbia151 or the Supreme Court of Canada in the Rodriguez decision.152

VI.6.6    Justice Smith rejected the analogy.153 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."154 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.155 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.156

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,157 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.158

VI.6.8    Thus, 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.159

VI.7    Proportionality

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 limitations imposed by law were, nonetheless, justified by the benefits it provided.160 At this stage the judge considered Canada's claims (rejected with respect to the purpose of the law) that absolute prohibition of assisted suicide provided 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.161

VI.7.2    Returning to her review of the evidence, Justice Smith held that absolute prohibition of assisted suicide had "the advantage of simplicity and clarity,"162 but that the evidence failed to show that it clearly benefitted patients, physicians, or palliative care.163 She speculated that there may be some benefit to regulating a practice that occurs from time to time despite the prohibition.164 But she was quite clear that, in her view, absolute prohibition of assisted suicide imposed a disproportionate burden on the disabled.165 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."166

VI.7.3    Ultimately, she agreed that absolute prohibition probably had salutary effects in comparison to no prohibition,167 and admitted that suicide and attempted suicide were "serious public health problems."168 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."169

VI.8    Life, liberty and security of the person

VI.8.1    The s. 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.170

VI.8.2    There was no dispute that the law against assisted suicide engaged the liberty interests of Johnson and Carter.171 After considering objections made by Canada,172 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.173

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,"174 insisting that court rulings had "consistently recognized that the right to life protects individuals from death or the risk of death" and do not confer "a right to die."175

VI.8.4    Justice Smith agreed "that the right to life is engaged only when there is a threat of death,"176 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,"177 an argument obviously reflecting the premise that committing suicide can be an acceptable (so conceivably “necessary”) act.

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 would be unable to have assistance later;178

• 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."179 (Particularly in light of evidence before the court of physician opposition to assisted suicide, it is remarkable that the judge assumed — or perhaps expected — 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."180

• Palliative care may be unavailable or unacceptable, so that they might continue to experience pain and suffering.181

• They sufferered stress because they were unable to have the comfort of knowing that assisted suicide or euthanasia would be available if they so chose.182

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.183

VI.8.8    The possibility that the law was arbitrary was the first point to consider in determining whether or not such deprivations were in accordance with the principles of fundamental justice. Since the Supreme Court had decided in Rodriguez that the law was not arbitrary, the judge accepted that ruling.184

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."185 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;186

• 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;187

• did not demonstrate that assisted suicide and euthanasia were inconsistent with medical ethics;188

• 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."189

VI.8.10    Finally, 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."190.

VII.    The declaration of invalidity

VII.1.1    In consequence of her findings and reasoning, Justice Smith declared that the "impugned provisions" of the law unjustifiably infringed Charter ss. 7 and 15 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.191

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.192 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.193

VII.3    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    Justice Smith introduced her ruling with a summary of the findings of fact194 and legal reasoning.195 Far from offering the conclusions claimed by Mr. Arvay, she 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.

VII.5    In short, the judge's statements in Part VII were judicial dicta tha provided neither authority nor even persuasive weight for Mr. Arvay's extravagant claims.  The whole of Part VII could be removed from the judgement without affecting the legal analysis and conclusions in Parts XI, XII and XIII (Appendix "B").

VIII.    The remedy

VIII.1    Justice Smith described the circumstances and the class of patients under which and for whom physicians could provide euthanasia or assisted suicide without facing criminal prosecution.

a) Only medical practitioners could provide assisted suicide or euthanasia;

b) Assisted suicide and euthanasia could be provided only within the context of a physician-patient relationship;

c) The patient had to make the request personally, not through someone else;

d) The patient had to be

i) an adult,

ii) fully informed, non-ambivalent, and competent,

iii) free from coercion and undue influence, not clinically depressed;

e) The patient had to be diagnosed by a medical practitioner as having a serious illness, disease or disability (including disability arising from traumatic injury)

i) that was without remedy acceptable to the patient,

ii) that caused enduring physical or psychological suffering that was intolerable to the patient and that could not be alleviated by any medical treatment acceptable to the patient;

f) The patient had to be in a state of advanced weakening capacities with no chance of improvement.196

VIII.2    "Constitutional exemption"

VIII.2.1    The judge suspended the application of her declaration for a year to give the government time to decide how to respond.197 However, she granted a "constitutional exemption" to Gloria Taylor and her physician so that she could seek assisted suicide or euthanasia while the ruling was suspended.

VIII.2.2    The conditions and procedure set out by Justice Smith were, in some respects, more restrictive than the terms specified in the declaration of invalidity.  This may have reflected an abundance of caution, since the probability of an appeal to the Supreme Court of Canada made the ultimate outcome uncertain.

VIII.2.3    The conditions:198

a) The request had to be made in writing by Ms. Taylor.

b) Her attending physician had to attest (the context throughout implied a written attestation) that she was "terminally ill and near death, and there is no hope of recovering."

c) The attending physician had to attest that Ms. Taylor had been informed of her diagnosis and prognosis and of feasible treatment options and palliative care options.

d) Ms. Taylor had to be referred to a palliative care specialist for consultation.

e) Ms. Taylor had to be advised that she had a continuing right to change her mind.

f) Both the attending physician and a consulting psychiatrist had to attest that Ms. Taylor was competent, non-ambivalent and acting voluntarily. Should either decline to do so, that had to be made known to physicians and psychiatrists subsequently involved, and to the court.

g) The attending physician had to attest to the kind and amount of medication to be used for assisted suicide or euthanasia.

h) Unless Ms. Taylor was 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:199

a) Ms. Taylor must apply to the British Columbia Supreme Court and prove that the conditions set out above had been met.

b)  The Court, if satisfied, would 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 was "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 also had to be competent and "voluntarily seeking a physician-assisted death."

VIII.2.5    The final element of the order is of particular interest. Justice Smith ruled that the court should also authorize the physician who assisted the suicide or provided euthanasia to "complete her death certificate indicating death from her underlying illness as the cause of death."200

VIII.2.6    That 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."201 The rationale for this appears to have been provided 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 ODDA202 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.203

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 Columbia204 and internationally205 and more likely to produce confusion than promote 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, Justice Smith felt it necessary to authorize physicians to falsify death certificates.

IX.    Summary

IX.1    The trajectory of the trial was determined by the unchallenged fundamental premise that suicide can be a rational and ethical act, and that the sole purpose of the law against assisted suicide was to prevent suicides by vulnerable people who might, in moments of weakness, be tempted to commit suicide that is not rational and ethical.

IX.2    Since, on this understanding, the vulnerable were not to be protected against something that was 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.

IX.3    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.

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 and euthanasia.  The argument advanced was, in effect, that one cannot reasonably demand a higher standard of safety in the delivery of assisted suicide and euthanasia than in the delivery of palliative care because the results of a mistake in either case are the same: the death of the patient.

IX.6    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 and euthanasia for competent adults.

IX.7    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.

X.    Postscript

IX.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.206

IX.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.

IX.3    They had argued against legalizing assisted suicide and euthanasia 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 or euthanasia 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?

IX.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 arguments would be dismissed with contempt condescension.

IX.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, 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.

IX.6 However, 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.

---

Notes

1.    Carter v. Canada (Attorney General) 2012 BCSC 886 [Carter BCSC ] at para 101.

2.    Ibid at para 19,38, 1393(b), 1414(f).

3.    "Therapeutic homicide" refers to euthanasia. The term was not used in the judgement, but in the title of an editorial in the Canadian Medical Association Journal responding to the ruling.  See Ken Flegel John Fletcher,"Choosing when and how to die: Are we ready to perform therapeutic homicide?" (2012) 184:11 CMAJ 1227.  While novel, it is actually a legally precise formulation if one accepts the premise that homicide can be therapeutic, since, in Canadian law, 'homicide' refers simply to the killing of a human being, without an implication of illegality.  See Criminal Code, RSC 1985, c C-46 [Criminal Code], s 222(1).

4.     "Assisted-suicide crusader Gloria Taylor dies in B.C." CBC News (5 October, 2012).

5.    Sean Murphy, "Redefining the Practice of Medicine: Euthanasia in Quebec - An Act Respecting End-of-Life Care (June, 2014)" (28 October, 2015), Protection of Conscience Project (website).

6.    Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331 [Carter SCC 2015].

7.    Sean Murphy, "Jurisdictional, organizational and regulatory framework for health care delivery in Canada" (15 September, 2020), Protection of Conscience Project (website).

8.    Department of Justice, News release: "Government of Canada Establishes External Panel on options for a legislative response to Carter v. Canada" (17 July, 2015).

9.    Sean Murphy, "Canadian Medical Association and euthanasia and assisted suicide in Canada: Critical review of CMA approach to changes in policy and law - Part 2 - CMA on freedom of conscience after Carter"(26 September, 2018 ) Protection of Conscience Project (website).

10.    Sean Murphy, "A 'uniquely Canadian approach' to freedom of conscience: Provincial-Territorial Experts recommend coercion to ensure delivery of euthanasia and assisted suicide" (15 June, 2018), Protection of Conscience Project (website).

11.    Carter v. Canada (Attorney General) 2016 SCC 4.

12.    An Act to amend the Criminal Code (medical assistance in dying), SC 2021 c C-2.

13.    Rodriguez v. British Columbia (Attorney General), 3 SCR 519 (1993).

14.    Ibid at 578.

15.    "Jocelyn Downie Curriculm Vitae" (undated) Impact Ethics (website).

16.    "Jocelyn Downie" (undated) Dalhousie University, Schulich School of Law (website).

17.    Jocelyn Downie & Simone Bern "Rodriguez Redux" 16 Health LJ (2008) 27.

18.    Carter BSCC supra note 1 at para 124.

19.    Carter v. Canada (Attorney General) 2012 BCSC 886 (Notice of Civil Claim) [Notice of Claim] at Part 1, para 17-24.

20.    Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11 [Charter].

21.    Notice of Claim, supra note 19 at Part 3, para 23.

22.    Ibid at Part 3, para 5-11.

23.    Ibid at Part 3, para 12-14.

24.    Ibid at Part 3, para 15-17.

25.    Ibid at Part 3, para 2.

26.    Ibid at Part 2, para 35.

27.    Ibid at Part 2, para 1-3.

28.    Ibid at Part 1, para 9 (identifying ss. 14, 21, 22, 222 and 241).

29.    Ibid at Part 1, para 6-7; Part 3, para 1-3.

30.    BC Civil Liberties Association, News Release, "BCCLA launches lawsuit to challenge criminal laws against medically-assisted dying" (26 April, 2011) [BCCLA News Release].

31.    Notice of Claim, supra note 19 at Part 1 at para 6-9.

32.    Carter v. Canada (Attorney General) 2012 BCSC 886 (Notice of Application and Amended Notice of Civil Claim).

33.    Carter BCSC, supra note 1 at para. 137-142.

34.    Ibid at para 29.

35.    Ibid at para 1026.

36.    Ibid at para 1169.

37.    Ibid at para 1331-1332.

38.    Ibid at para 1339.

39.    Ibid at para 1373-1375.

40.    Ibid at para 1379-1383.

41.    Ibid at para 1288.

42.    Ibid at para 1339, 1348, 1361.

43.    Ibid at para 1376.

44.    Ibid at para 952, 954, 1172, 1217.

45.    Canada (Attorney General) vs Bedford, 2013 SCC 72, 3 SCR 1101 at para 125–127.

46.    Carter BCSC, supra note 1 at para 1172, 1288, 1348.

47.    F.H. v. McDougall, 2008 SCC 53.

48.    Sauve v. Canada (Chief Electoral Officer) 2002 SCC 68 at para 18, quoted in Carter BCSC, supra note 1 at para 1178.

49.    Carter BCSC, supra note 1 at para 114.

50.    Ibid at para 115.

51.    Ibid at para 157.

52.    Ibid at para 144-145.

53.    Ibid at para 115.

54.    Ibid at para 653.

55.    Ibid at para 656.

56.    Ibid at para 657.

57.    Ibid at para 667.

58.    Ibid at para 671.

59.    Ibid at para 672.

60.    Ibid at para 684.

61.    Ibid at para 685.

62.    Ibid at para 709-730.

63.    Ibid at para 731.

64.    Ibid at para 732-735.

65.    Ibid at para 736.

66.    Ibid at para 746.

67.    Ibid at para 9.

68.    Ibid at para 798.

69.    Ibid at para 815.

70.    Ibid at para 831.

71.    Ibid at para 775.

72.    Ibid at para 843.

73.    Ibid at para 853, 847.

74.    Ibid at para 853.

75.    Ibid at para 883.

76.    "The party must be of years of discretion, and in his senses, else it is no crime. But this excuse ought not to be strained to that length, to which our coroner's juries are apt to carry it, viz. that the very act of suicide is an evidence of insanity; as if every man, who acts contrary to reason, had no reason at all: for the same argument would prove every other criminal non compos, as well as the self-murderer. The law very rationally judges that every melancholy or hypochondriac fit does not deprive a man of the capacity of discerning right from wrong; which is necessary, as was observed in a former chapter, to form a legal excuse." William Blackstone, Commentaries on the Laws of England, 12th ed, vol IV (London: A. Strahan and W. Woodfall, 1795) [Blackstone] at 188-189.

77.    Rodriguez, supra note 13 at 608.

78.    Carter BCSC, supra note 1 at para 102-107. As the judge explicitly stated (para 103-105), it was the offence of attempted suicide — not suicide — that was abolished in 1972. Suicide was an offence at common law in England at Confederation and was thus part of criminal law at that time, but was arguably abolished as an offence in Canada with the enactment of the first Criminal Code in 1892, which codified only the offence of attempted suicide (See Criminal Code, 55-56 Victoria, c 29, s 238. It was certainly abolished when Parliament explicitly abolished all common law offences in 1955 (Criminal Code, supra note 3 at s 9).

79.    Ibid at para 161-884.

80.    Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331 (Oral argument, Appellant) [Carter SCC webcast] at 00:38:35 to 00:40:31.

81.    Carter BCSC, supra note 1 at para 175; Notice of Civil Claim, supra note 19 at Part 2, para 1–3 and Part 3, para 12–14.

82.    Ibid at para 175, 180–181.

83.    Ibid at para 339. The judge used the term “ethical,” not “moral,” and more frequently employed the former, but she treats them as synonyms when addressing the question, “Does the law attempt to uphold a conception of morality inconsistent with the consensus in Canadian society?” (Ibid at para 340-358). Moreover, witnesses on both sides did not typically distinguish between ethical and moral issues. See, for example, Dr. Shoichet (plaintiffs) at para 75, Prof. Sumner (plaintiffs) at para 237, Dr. Bereza (defendants) at para 248, Dr. Preston (plaintiffs) at para 262.

84.    “One justification for the different legal treatment of suicide and assisted suicide is that suicide is essentially a private act and should be judged according to one’s own morality.” Margaret Somerville, Death Talk: The Case Against Euthanasia and Physician-Assisted Suicide (2001: Queen’s University Press, Montreal & Kingston) at 103.

85.    Carter BCSC, supra note 1 at para 169.

86.    Ibid at para 171.

87.    Ibid at para 172.

88.    Ibid at para 1146–1147.

89.    Ibid at para 1049.

90.    Ibid at para 813-814.

91.    Ibid at para 812, 827. The judge applied this distinction later (para 833) in referring to evidence from the plaintiffs’ witness: "[W]hile it is possible for a person who is grievously and irremediably ill to be ‘suicidal’ in the traditional sense, this is not necessarily the case for those seeking physician-assisted death and it cannot be assumed to be so. Instead, the decisions often reflect long-held, deep-seated values and are rational, consultative, informed and considered." Note that the "traditional" view applied by the judge was narrower than the older common law approach, which encompassed both culpable and non-culpable suicide.

92.    Ibid at para 1262.

93.    Ibid at para 842.

94.    Ibid, at para 339, citing plaintiff witness Professor Wayne Sumner; Ibid at para 237.

95.    Ibid at para 234 (Sumner).

96.    Margaret Somerville, “Legalizing Euthanasia: Evolution or Revolution in Societal Values?” in Margaret Somerville, Bird on an Ethics Wire: Battles about Values in the Culture Wars (Montreal & Kingston: McGill-Queen’s University Press, 2015) [Somerville 2015] at 120.

97.    Carter BCSC, supra note 1 at para 234-236 (plaintiff witness Sumner); 242 (plaintiff witness Upshur).

98.    Ibid at para 23.

99.    Ibid at para 39.

100.   Ibid at para 237 (Professor Margaret Somerville made particular note of this point in her critique of the ruling. "Legalizing Euthanasia: Evolution or Revolution in Societal Values?" In Somerville M. Bird on an Ethics Wire: Battles about Values in the Culture Wars. Montreal & Kingston: McGill-Queen’s University Press, 2015, p. 129-130).

101.  They may be culpably or non-culpably mistaken in identifying the good, or culpably or non-culpably fail to pursue it, but this does not affect the natural orientation of moral reasoning toward something thought to be good in some sense.

102.    Fleming v. Ireland & Ors [2013] IEHC 2, (Ireland) [Fleming].

103.    Carter SCC webcast, supra note 80 at 00:08:23 to 00:09:04.

104.    Fleming, supra note 103 at Summary of judgement, para 5, 7.

105.    Ibid at para 87, 90.

106.    The Irish government asserted that the Irish Constitution did not either "expressly or implicitly" provide a right to die, while the Human Rights Commission claimed that people have a right to take their own lives in "defined and extreme" circumstances. (Ibid, para. 6, 9) These sharply contrasting statements may have enabled the Irish judges to see and approach key issues differently.

107.    The evidence of defendant witnesses Dr. Tony O’Brien (Ibid at para 34-41) and Professor Robert George (Ibid at para 42-47) appears to have been clearer and stronger on palliative care, the use of opioids, sedation, palliative sedation and the likely efficacy of safeguards than that offered by defendant witnesses in Carter, although this could also reflect differences in the receptivity to and reporting of the evidence by the judges.

108.    Cross examination of Professor Margaret Pabst Battin, who was also a plaintiff witness in the Carter trial, may have been more effective (Ibid at para 30-33).

109.    Ibid at para 69.

110.    Ibid.

111.    Ibid at para 53, 55, 93.

112.    Ibid at para 104.

113.    Ibid at para 67.

114.    Carter SCC webcast, supra note 80 at 00:24:08 to 00:24:29.

115.    The qualification "ethically"is implicit in the reasoning but not stated.

116.    Carter BCSC, supra note 1 at para 1039-1050, 1064.

117.    Ibid at para 258, 1277-1278.

118.    Ibidat para 1032—1036.

119.    Ibid at para 1156.

120.    Ibid at para 1159.

121.    Ibid at para 1161.

122.    Ibid at para 1163-1168.

123.    Ibid at para 1171.

124.    Ibid at para 1169.

125.    Ibid at para 168, 1147, 1187.

126.    Ibid at para 169.

127.    Ibid at para 171.

128.    Ibid at para 172.

129.    "[T]he law of England widely and religiously considers, that no man hath a power to destroy life, but by commission from God, the author of it:and, as the suicide is guilty fo a double offence; one spiritual, in invading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his subjects; the law has therefore ranked this among the highest crimes, making is a peculiar species of felony, a felony committed on one's self. And this admits of accessories before the fact, as well as other felonies; for if one persuades another to kill himself, and he does so, the adviser is guilty of murder." Blackstone, supra note 75 at 188.

130.    Carter BCSC, supra note 1 para. 105, 1146.

131.    Ibid at para 352.

132.    Ibid at para 1185, 1187.

133.    Rodriguez, supra note 13 at 595  ("Purpose" in relation to the law against assisted suicide is singular).

134.    Ibid at 601 ("Purpose" is singular).

135.    Ibid at 608. 

136.    Carter BCSC, supra note 1 at para 1191.

137.    Ibid at para 1187 ("In submissions that I take to be alternative to its main submission that Rodriguez is binding. . . ").

138.    Ibid at para 1189.

139.    Ibid at para 1184, 926.

140.    Ibid at para 16, 926, 1116, 1126, 1166, 1184-1185, 1187-1188, 1190, 1199, 1348, 1362.

141.    Ibid at para 1202-1206.

142.    Ibid at para 1207-1210.

143.    Ibid at para 237, 339, 1124, 1136, 1185, 1190, 1362.

144.    Ibid at para 1172.

145.    Ibid at para 1232.

146.    Ibid at para 359.

147.    The judge rejected the term “wrongful death,” but, for the sake of convenience, she nonetheless used it in the ruling (Ibid at para 755 - 758).

148.    Ibid at para 1192-1196, 1230, 1236, 1349, 1351.

149.    Ibid at para 1193.

150.    The possibility of error does not seem to have been a significant factor when abolition occurred. The government had a de facto policy of commuting all death sentences to life imprisonment. However, in the summer of 1976 it was faced with the prospect of having to review the death sentences of four men who had unquestionably murdered policemen in circumstances that provided no publicly acceptable rationale for commutation. Two had “set out with a rifle . . . hunted until they found a policeman” and shot him. (R v Miller, 63 DLR (3d) 193 at 250), and two had murdered two policemen in New Brunswick. The trial judge in the latter case said that there were no extenuating circumstances to justify a recommendation for the royal prerogative of mercy (“Moncton hangings delayed”, Montreal Gazette (10 June, 1975); Esther Crandall, “Death penalty bill stirs Canadian controversy”, The Bangor Daily News (9 June, 1975). Seven other men were also awaiting execution when capital punishment was abolished (Persons sentenced to death in Canada, 1867-1976 : an inventory of case files in the fonds of the Department of Justice / Lorraine Gadoury and Antonio Lechasseur, Ottawa, National Archives of Canada.

151.    Carter BCSC, supra note 1 at para 169, 284.

152.    Ibid at para 1190.

153.    Ibid at para 1200, 1356.

154.    Ibid at para 1353.

155.    Ibid at para 435, 1198-1199, 1230-1231, 1237.

156.    Ibid at para 1240.

157.    Ibid at para 653, 815.

158.    Ibid at para 1240.

159.    Ibid at para 1243.

160.    Ibid at para 1246.

161.    Ibid at para 1247-1249; 1252.

162.    Ibid at para 1268.

163.    Ibid at para 1269-1274.

164.    Ibid at para 1282.

165.    Ibid at para 1264, 1277-1279, 1281.

166.    Ibid at para 1275-1276.

167.    Ibid at para 1267.

168.    Ibid at para 1265.

169.    Ibid at para 1283.

170.    Ibid at para 940.

171.    Ibid at para 1294,1304.

172.    Ibid at para 1296-1297.

173.    Ibid at para 1303, 1304.

174.    Ibid at para 1314.

175.    Ibid at para 1315.

176.    Ibid at para 1320.

177.    Ibid at para 1322.

178.    Ibid at para 1325.

179.    Ibid at para 1326.

180.    Ibid at para 1327.

181.    Ibid at para 1328.

182.    Ibid at para 1329.

183.    Ibid at para 17.

184.    Ibid at para 1337.

185.    Ibid at para 1348.

186.    Ibid at para 1365, 1367.

187.    Ibid at para 1366-1367.

188.    Ibid at para 1369.

189.    Ibid at para 1370.

190.    Ibid at para 1378.

191.    Ibid, at para 1393.

192.    Carter SCC webcast, supra note 1 at 100:20/491:20 – 100:44/491:20.

193.    Ibid at 101:27/491:20 - 102:01/491:20. However, the terms “active” and “passive” euthanasia were not used by the trial court judge. She did not characterize the withdrawal or withholding of treatment as “passive euthanasia.”

194.    Carter BCSC, supra note 1 at para 4-10.

195.    Ibid at para 12 to 18.

196.    Ibid at para 1393.

197.    Ibid at para 1399.

198.    Ibid at para 1414.

199.    Ibid at para 1415.

200.    Ibid at para 1415(b)

201.    Ibid at para. 883; 16, 342, 1233, 1243, 1267, 1283.

202.    Oregon Death With Dignity Act.

203.    Carter BCSC, supra note 1 at para 414.

204.    In British Columbia it was acknowledged that suicides may result from stress and depression arising from terminal or debilitating illness or a mental disorder. The cause of death was plainly stated, and the death was classified as a suicide, but if the underlying illness or disorder was known it is reported as a contributing factor. This better served the end of transparency. Vital Statistics British Columbia, Physicians’ and Coroners’ Handbook on Medical Certification of Death and Stillbirth (Victoria, British Columbia: Ministry of Health Services,2004) at 13.

205.    The underlying cause of death was defined by the World Health Organization as “(a) the disease or injury which initiated the train of morbid events leading directly to the death, or (b) the circumstances of the accident or violence which produced the fatal injury.” The reason for the definition “is to ensure that all the relevant information is recorded and the certifier does not select some conditions for entry and reject others.” World Health Organization, International Statistical Classification of Diseases and Health Related Problems, 2nd ed,10th revision, vol 2 (Geneva: World Health Organization, 2004) at 4.1.1–4.1.2. Instructions for ICD coding stated, “suicide (X60–X84) should not be accepted as ‘due to’ any other cause.” World Health Organization, International Statistical Classification of Diseases and Health Related Problems: Instruction Manual, 2010 ed, 10th revision, vol 2 (Geneva: World Health Organization, 2004) at 82.

206.    CBC Radio, Cross Country Checkup, 24 June, 2012.