How does the decision in the Supreme Court of Canada (SCC) in Carter v. Canada (Attorney General)1 ("Carter") impact on the religious Jewish doctor? Will this landmark decision bring into conflict these doctors' freedom of conscience and religion with their professional obligations? The Carter case sets aside federal criminal laws as they relate to physician assisted suicide. It stands for the proposition that individuals who are suffering unbearably have a constitutional right to a physician-assisted suicide. Canada now joins only eight other countries in the world that have decriminalized physician-assisted suicide in recent years. This is a fundamental change in the law.

Previously, in the 1993 decision of Rodriguez v. British Columbia (Attorney-General)2, the SCC confirmed the criminal sanctions as they related to physician-assisted suicide, while justifying their ruling by citing the protection of the sanctity of life. Given the importance of Carter, the authors will consider some of the main concepts discussed in the decision, and consider how the SCC's position has changed over the last 22 years.

Carter – Background

The Carter decision arises from a challenge brought in 2011 by the families of Kathleen Carter, an 89 year old woman suffering from spinal stenosis, and Gloria Taylor, a 64 year old woman suffering from ALS. They challenged those provisions of the Canadian Criminal Code (CCC) that criminalizes physician assisted suicide.

In particular, s. 14 of the CCC states:

14: No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

Further, section 241(b) of the CCC states:

241: Everyone who

a. Counsels a person to commit suicide, or

b. Aids or abets a person to commit suicide

Whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

The challenge was launched in 2011 by the British Columbia Civil Liberties Association ("BCCLA"), who submitted that both sections 14 and 241(b) of the CC violated sections 73 and 15(1)4 of the Canadian Charter of Rights and Freedoms (the "Charter").

(a) Trial Decision

At the trial of this matter in 2012, Justice Smith of the BC Supreme Court ruled that the Criminal Code provisions prohibiting physician-assisted suicide contravened the constitutional rights that ought to be afforded to the seriously ill.

Justice Smith determined that a legal regime that is well-designed and administered properly and permissively could protect those vulnerable people, including those seeking a physician assisted suicide, from any potential errors and abuses which the overly broad present legal regime seeks to protect against. If this new legal regime were put in place, there would be no need for the criminal sanctions that at present attach to physician-assisted suicide.

Justice Smith gave Parliament one year to rewrite the laws in the CCC. The federal government thereafter, and unsurprisingly, appealed Justice Smith's decision.

(b) Appeal Decision

In its appeal, the federal government relied on the SCC decision in Rodriguez, for the proposition that only the SCC had the right to consider whether the criminal sanctions related to physician assisted suicide were constitutional. The Court of Appeal agreed. The trial decision was overturned, but that was not the end of the litigation.

The SCC granted the plaintiffs leave to appeal.

(c) SCC Decision

The question before the SCC was: "Whether the criminal prohibition that puts a person to this choice [of taking their own life prematurely, or suffering until death from natural causes] violates her Charter rights to life, liberty and security of the person [s. 7] and to equal treatment by and under the law [s. 15]."5

The SCC ultimately agreed with the Trial Judge, and determined that physician-assisted suicide ought to be decriminalized.

In doing so, the Court set out a test that gravely ill individuals had to meet in order to have the right to legally seek an assisted death within the medical context. The test states that if a competent adult:

1. clearly consents to the termination of his/her life; and
2. has a grievous and irremediable medical condition that causes enduring suffering that is intolerable to that person in his/her condition,

that they can seek to have a physician assist in their death.6

The Court determined that the current criminal legislation forces individuals to make a choice between either intolerable suffering or a premature natural death. By decriminalizing assisted suicide, the SCC rejected the notion that the right to life requires an absolute prohibition on assisted suicide. The Court stated that "individuals cannot "waive" their right to life", and continued that, "This would create a "duty to live", rather than a "right to life", and would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment."7

In particular, the SCC found that depriving someone of the right to life, liberty and security of the person (as codified in s. 7) did not accord with the principles of fundamental justice. It was determined that the criminal sanctions were overbroad, as they rejected absolutely someone's right to take their own life, without considering those most extreme circumstances, in which such fatal decisions may be necessary.

SCC's approach to the question of the sanctity of life

In the second paragraph of the Carter decision, the SCC stated, "On the one hand stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable."

At the outset, the issue of the sanctity of life is a consideration that is made by the SCC, and the importance of the sanctity of life is repeated throughout the judgment. Nonetheless, and as stated by the SCC,

The sanctity of life is one of our most fundamental societal values. Section 7 is rooted in a profound respect for the value of human life. But s. 7 also encompasses life, liberty and security of the person during the passage to death. It is for this reason that the sanctity of life "is no longer seen to require that all human life be preserved at all costs" (Rodriguez, at p. 595, per Sopinka J.). And it is for this reason that the law has come to recognize that in certain circumstances, an individual's choice about the end of her life is entitled to respect.8

In Rodriguez, the SCC rejected physician-assisted suicide in reliance on s. 7 of the Charter, which protects the rights to "life, liberty and security of the person". However, in Carter, the SCC found that the prohibition of physician-assisted dying violated the rights enshrined in s. 7 in two ways:

a. The current laws force some people to prematurely take their own lives, in anticipation of the suffering that they will later face; and

b. The prohibitions in the CCC interfere with one's ability to make their own decisions regarding their body and medical care, which is not in accordance with principles of fundamental justice.9

The Court's reasoning therefore necessitated a finding that the violations contained in the CCC were overbroad, in that it catches those vulnerable people the law is seeking to protect, as well as those who have a fully-informed and competent desire to terminate their lives.10

The reliance of the Court on the sanctity of life argument, and the newly defined right to life, was a key component in the Court’s finding that physician-assisted suicide ought to be decriminalized, on account of its focus on "the value of human life" which, the Court said, also encompasses life, liberty and security of the person during the passage to death. It is for this reason that the sanctity of life "is no longer seen to require that all human life be preserved at all costs.

It is with respect to the sanctity of life argument that we turn to the Jewish position on physician assisted suicide.

Halacha and physician-assisted suicide

Halacha does not permit suicide.11 But, are there instances in Jewish history that have accepted that in some circumstances suicide is acceptable? Professor and Rabbi Steven H. Resnicoff, of DePaul University College12 wrote a scholarly paper entitled "Jewish Law Perspectives on Suicide and Physician-Assisted Dying"13. His review of relevant moments in Jewish history and rabbinic reaction to them may be helpful to the reader to understand how Halacha views this issue.

"There is considerable controversy as to whether there are any exceptions to the rule against suicide and, if so, what those exceptions are. Jewish law scholars analyze these issues by examining how ancient authorities dealt with biblical or Talmudic examples of suicide. Perhaps the most intensively discussed biblical example of suicide involves King Saul. Saul's forces were losing a battle with the Philistines, when he realized that the Philistines had surrounded him and that he could not escape. Fearing imminent capture, he asked his arms-bearer to kill him. The arms-bearer refused, whereupon Saul fell on his own sword, which may have killed him. Assuming that this act did cause Saul's death, commentators discuss whether the act was justified and, if so, why.

The Shulhan Arukh14, the foremost Jewish law treatise, while explaining that a person who commits suicide is generally not to be eulogized, provides an explicit exception for a person who, "as Saul," committed   suicide while   under duress.   Moreover, the Talmud, explains that one of the reasons why there was a three-year famine throughout the land of Israel was that Saul was not eulogized. One authority, the author of Besamim Rosh, relying on the Talmud's treatment of Saul's death, reportedly rules that one who kills oneself because of multiple sorrows, distresses, worries, or afflictions or from abject poverty is not considered to have illegally committed suicide. A few other authorities possibly take a similar position. The overwhelming weight of Jewish law authority, however, maintains that Jewish law does not permit a person to kill himself in response to such suffering. As proof, scholars cite the Talmudic discussion of the death of Rabbi Hanina ben Teradion, who was burned alive by the Romans. To impede his death and prolong his agony, the Romans placed tufts of wet wool on his body. Rabbi Hanina's students implored him to end his suffering quickly by opening his mouth and allowing the flames to enter. He replied, "It is better that He who gave [me my soul] should take it rather than I should cause injury to myself." Rabbi Moshe Sofer, an eighteenth century authority, goes so far as to say that the case of Rabbi Hanina ben Teradion demonstrates that Besamim Rosh, originally attributed to a fourteenth century scholar, is a forgery. Rabbi Yehiel Michael Tukazinsky, a modem expert on the laws of mourning, similarly rejects Besamim Rosh, stating that if its view were true, there would be no illegal suicides; everyone who kills does so because of some great suffering.

Most authorities explain Saul's case in one of two ways. Some contend that even Saul, a priori, was wrong to commit suicide. They argue that the Talmud and Shulchan Arukh only establish that the type of duress Saul experienced constitutes an extenuating circumstance that post facto renders inapplicable the prohibition against eulogies.

An extreme modem day case of duress tested these teachings. Rabbi Ephraim Oshry15, an authority in the Kovno Ghetto in 1941, reports that German soldiers would sadistically murder children in front of parents and wives in front of husbands before finally killing the husbands. On October 27, 1941, two days before 10,000 members of the Kovno Ghetto – men, women and children – were taken away to be killed, a respected member of the ghetto tearfully approached Rabbi Oshry and said that he simply would not be able to endure watching his loved ones suffer. For this reason, be asked whether it would be permissible for him to kill himself. Although Rabbi Oshry noted the view of Besamim Rosh, he seems to have ruled that, notwithstanding the extenuating circumstances, it was not a priori permissible for the man to commit suicide.

Other authorities entirely justify Saul's action, but only because he had one or more specifically acceptable reasons other than the mere avoidance of pain and suffering. Most of these authorities justify Saul's action only because it was designed to avoid a desecration of G-d's name, a Hilul HaShem16. For example, the fourteenth century scholar, Rabbi Yom Tov Ishbili (known as Ritva), argues that Saul feared not only that the Philistines would torture him, but that, as a result of such torture, he would accede to their demands to perform idol-worship. Doing so would constitute a Hillul HasHem.

. ….What if a person is convinced that, as a result of such torture, he will commit a prohibited act such as idolatry? As already mentioned, some say that this is the situation in which Saul found himself and that Jewish law permitted him to actively kill himself in order to avoid performing idolatry. In fact, some say that a person sanctifies G-d's name by killing himself rather than allowing himself to be forced to commit sexual immorality or idolatry. These scholars can find evidence for this halakhic view in a story found in the Talmudic tractate, Gittin17. The Romans were transporting by boat four hundred Jewish boys and girls to be used for illicit sexual purposes. Rather than be forced to participate in their captors' plans, these captives – whom the Talmud extols – plunged into the ocean, preferring to be drowned. Rav Yaakov ben Meir (Rebbenu Tam), a 12th-century scholar, states that "Where people fear that idol-worshipers will force them to sin through torture that they will be unable to withstand, it is a "mitzvah" for them to smite themselves just as in the case in Gittin in which the children captured for immoral purposes cast themselves into the sea." This view seems to have been relied upon by many throughout Jewish history who, when faced with the prospect of forced conversion, committed suicide.103   Nonetheless, not all authorities agree with Rabbenu Tam.

In his paper Professor/Rabbi Resnicoff points out, in footnote 81,

"Interestingly, Rabbi Hanina promised the executioner a place in the World to Come if the executioner removed the wool and fanned the flames. After a heavenly voice announced that this promise would be fulfilled, the executioner complied – and then jumped into the flames himself. This part of the story seems to suggest that the executioner's fanning of the flames, an affirmative act that hastened Rabbi Hanina's death, as well as the executioner's own suicide were proper. Nevertheless, Jewish authorities explain that one cannot derive any general lessons from this part of the narrative. An examination of the various reasons that they give would, however, exceed the scope of this article. See, for example, Moshe Feinstein, lggerot Moshe, Hoshen Mishpat 11:73 and Yoreh De 'ah II:173(4).

These excerpts reflect that arguably, there may be rare exceptions in Halacha to the prohibition against suicide. But, as pointed out in the Encyclopedia of Jewish Medical Ethics, by Avraham Steinberg, "Some rabbinic authorities' state that in certain specific instances of great suffering it is permitted to take one's own life. However, the majority of rabbinic decisors disagree with this view.18"The preservation and sanctity of life has always been regarded as a cardinal value in Judaism, and there are a plethora of rules found in Jewish law (Halacha) and jurisprudence which are designed to ensure that all measures are always taken to ensure the protection of life.19

Your body is not yours

There is a belief in Judaism that life is a responsibility20, and that the body in which you enjoy that life, has been loaned to you by G-d for your use during your lifetime. The responsibility that one has with their life is, for example, to use their body to procreate, and to safeguard theirs and other lives.

It follows then that if you do not own your body, then you are not at liberty to purposely, for example, either injure or kill yourself, since to do so would be damaging property that is not yours.21

One can also extrapolate this concept then to apply a general ban against allowing someone else, such as your physician, to assist you in that harm.

This theological concept stands in stark contrast to the findings of the Court in Carter, which determined that a prohibition against physician-assisted suicide would block an individual's ability to make decisions concerning his/her own body. In Judaism, one occupies their body for the purpose of enjoying life and making certain positive contributions, and are not entitled to make decisions concerning their own bodies.

Going further, apply this reasoning to the commentary provided in paragraph 2 of the Carter decision. There, the SCC lays out a sort of balancing act between the autonomy and dignity of a competent adult on the one side, and the sanctity of life on the other. The Jewish perspective on the ownership of life and one's body effectively eliminates the first side of the SCC's balancing act. If, according to Judaism, one has no autonomy with respect to one's body, then the scale shifts dramatically in favour of preserving the sanctity of life at all costs. Therein lies the discrepancy between Jewish and Canadian law.

Judaism and the value of life

In any event, Judaism does not commit its adherents to a life that needs to be lived at all costs. There are, in fact, some situations in which a person may take steps that could hasten their death, in times of grave suffering, despite the absolute prohibition on actively killing oneself (or having someone help).22 For example:

1. Pain relief: A Jew is permitted to have medication such as morphine administered, even if such administration can lead to an increased risk of depressed breathing, which can lead to death directly, or indirectly through lung infection. The rational is that morphine or other pain medication may only be used in such a situation if it were used specifically in order to mitigate great pain.;
2. High-risk, life-saving procedure: A Jew may undergo a hazardous medical procedure to help alleviate their painful situation, even if the odds of success and relatively low, and no obligation to do so;
3. Prayer: Halacha allows a Jewish person to pray that G-d takes them out of their pain and suffering; and
4. Life sustaining treatment: In some circumstances, life sustaining treatment such as chemotherapy or medication, can be discontinued.

Suffice to say it is beyond the scope of this paper to give a full review of these issues in Jewish law. That is best left to the religious scholar – not the lawyer. What is clear is that it is a complex issue for religious Jews. So with this background, we are better prepared to review how the religious Jewish law considers Physician assisted suicide.

The Halachic view of Mercy killing is summarized by Dr. Avraham Steinberg as follows:

"Even if a terminally ill patient is suffering terribly, and even if he asks in a clear and unambiguous manner that he be killed, on may not acquiesce. He who kills him is guilty of murder since there is no difference in Jewish law whether one kills a healthy person or a terminally ill patient, including a gosses23. Any action that causes shortening of life or even a moment is forbidden and is considered spilling blood because even in the face of severe suffering it is forbidden to destroy life actively. One rabbi writes that life was decreed by God and it is His will that some people die quickly and painlessly and that others die a prolonged and painful death ….Therefore a physician is forbidden to assist in the suicide of a terminally ill patient."

So, how can Parliament reconcile the rights of patients and physicians whose faith or conscience forbid them to assist patients to commit suicide? The case of R. v. Morgentaler24 may be instructive.

The question arose in the context of granting abortions. In that case, hospitals were allowed to set up abortion clinics, but were not required to do so. So the problem then arose that perhaps a woman would be unable to get an abortion, even though she was legally permitted to, because of the unavailability of abortion resources in her immediate community. This is of course a problem that arises from permissible (as opposed to prohibitive) laws. We refer the reader to a recent article in the National Post entitled, "Doctors who refuse to provide services on moral grounds could face discipline under new Ontario policy"25Here are some excerpts from the article that are especially relevant to our discussion.

Doctors who refuse to prescribe birth control or other medical services because of their personal values could face possible disciplinary actions, Canada's largest medical regulator says.

"Moral or religious convictions of a doctor cannot impede a patient's access to care, the College of Physicians and Surgeons of Ontario said Friday in a 21-3 vote supporting an updated Professional and Human Rights policy.

The policy makes clear: "You cannot kick someone out of your office without care," said Dr. Marc Gabel, past president of the college and chairman of the policy's working group.

Some council members said the new code, which the college expects physicians to comply with or face complaints of professional misconduct, could lead to "state-run" medicine, while others said the church has no place in a doctor's office.

While it does not address physician-assisted death, it could set the stage for conflict with the Canadian Medical Association, whose leaders want to protect doctors against "mandatory referral" when the Supreme Court of Canada ruling legalizing doctor-hastened dying takes effect next February."

Imagine the doctor in a small rural town whose patient requests the physician to help the patient to commit suicide. There is no physician down the street who can help. For the religious Jewish doctor assisting this patient is a violation of the positive commandment that every Jew has an obligation to rescue someone whose life is at stake. If you have a positive obligation to help someone who is dying, it is entirely contradictory to be allowed to help them facilitate their own death,26 despite their suffering. Will this case be the first step in forcing this doctor to assist his patient to commit suicide?

Conclusion

With the recent Carter decision, there is now a potential conflict physicians' freedom of conscience and religion and the rights of patients to physician assisted suicide.

Canada's Supreme Court made it clear in Carter that those suffering from an irremediable medical condition, who are in a position to consent to life-terminating treatment, have the option of doing so without the threat of criminal sanctions against either them or their physician. Many physicians in Canada believe it to be contrary to their conscience and faith to assist someone in terminating their life, even in the face of prolonged suffering.

Should doctors who, on religious grounds, refuse to assist someone committing suicide be nervous about the state compelling their participation in this practice? In Carter, the SCC directly addressed this issue. Given the importance of this matter we enclose the specific excerpt from the decision:

130      A number of the interveners asked the Court to account for physicians' freedom of conscience and religion when crafting the remedy in this case. The Catholic Civil Rights League, the Faith and Freedom Alliance, the Protection of Conscience Project and the Catholic Health Alliance of Canada all expressed concern that physicians who object to medical assistance in dying on moral grounds may be obligated, based on a duty to act in their patients' best interests, to participate in physician-assisted dying…..

132      In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid. What follows is in the hands of the physicians' colleges, Parliament, and the provincial legislatures. However, we note — as did Beetz J. in addressing the topic of physician participation in abortion in R. v. Morgentaler — that a physician's decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief (pp. 95-96). In making this observation, we do not wish to pre-empt the legislative and regulatory response to this judgment. Rather, we underline that the Charter rights of patients and physicians will need to be reconciled. (Emphasis added)

The SCC said that this issue was one for the legislature and body regulating doctors to be the first to respond to and that there will need to be a reconciliation between the rights of patients and physicians. So should doctors whose religious beliefs mandate that they not assist their patients in committing suicide be nervous? It will depend on how the legislature and regulating bodies respond to this case.

This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader's case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.

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Notes

1.  2015 SCC 5 ("Carter")

2. (1993) 3 S.C.R. 519 ("Rodriguez")

3.  Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice"

4.  Section 15: "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

5.  Carter at para 2.

6.  The SCC also indicated that a patient need not first exhaust all other available treatment options before pursuing this course of action.

7.  Carter at para 63.

8.  Carter at para 63.

9.  Section 7 of the Charter states, "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Any consideration by the SCC of the validity of a particular law in light of s. 7 of the Charter therefore requires a determination on "fundamental justice" as well. In this case, the SCC determined that a prohibition of physician assisted suicide would breach s. 7, and that such a violation is not in accordance with fundamental justice (Carter at para. 126).

10.  Carter at para 56.

11.  If you want to hear more about the PAS/PAD debate, you might be interested in the recording of Rabbi Mordechai Torczyner's talk on PAS/PAD. For more information about this topic, please see pages 1050-1051 of the Encyclopedia of Jewish Medical Ethics and a site on line which discusses Jewish law and suicide.

12.  Professor of Law, DePaul University College of Law. B.A., Princeton University, 1974; J.D., Yale Law School, 1978; Rabbinic Degree, Beth Medrash Govoha, 1983; Chair (1998), Section on Jewish Law, Association of American Law Schools.

13.  Jewish Law Perspectives on Suicide and Physician-Assisted Dying, Steven H. Resnicoff, DePaul University College of Law, Journal of Law and Religion, Vol. 13, No. 2, 1998-1999.

14.  As defined by Torah.org: "The Shulchan Aruch ("Set Table") is a compendium of those areas of the halacha — Jewish religious law — that are applicable today. It was composed by Rabbi Yosef Karo of Safed (Israel) in the 1560's, and became generally accepted as authoritative after Rabbi Moshe Isserls of Cracow (Poland) supplemented it in the 1570's with notes (known as the Mappah – "Tablecloth") giving the rulings followed by Ashkenazic Jews."

15.  Rabbi Ephraim Oshry was faced with unimaginable questions by G-d fearing religious Jews in the Kovno Ghetto. In a book, Responsa by Rabbi Ephraim Oshry in the Kovno Ghetto, Sefer Divre Ephraim ("The Sayings of Ephraim"), New York, 1949, the halachic questions put to him are beyond the experience and understanding of a 21^stcentury Canadian. For a sample of the questions put to this Rabbi and the answers he provided I refer the reader to a site from the Jewish Virtual Library entitled, "Responsa Regarding Saving Yourself & Your Children in the Holocaust."

16.  This is a Hebrew phrase meaning a desecration of G-d's name.

17.  The Talmud is divided into six orders. It has two components: the Mishnah and the Gemara. The latter being an explanation of the Mishnah and other aspects of the Torah. The entire Talmud consists of 63 tractates, of which Gittin is one.

18.  See Encyclopedia of Jewish Medical Ethics, page 1051

19.  See   Jewish Law Perspectives on Suicide and Physician-Assisted Dying, Steven H. Resnicoff, DePaul University College of Law, Journal of Law and Religion, Vol. 13, No. 2, 1998-1999.  Such rules include prohibitions against murder, suicide, killing someone else to save your own life, and the obligation of breaking other Jewish laws (for example, the laws regarding the Sabbath) if by doing so would save someone's life, including their own. As Professor. Resnicoff points out, if one decides to maintain the Sabbath, which would lead to their own death, this would be considered under Halacha to be a form of suicide -Resnicoff at p 596.

20.  Resnicoff at p 596.

21.  Ibid.

22.  See "Jewish Medical Ethics: Physician Assisted Suicide – A Halachic Approach" by Rabbi Yitzchok Breitowitz

23.  In Hebrew, gosses means a person near death.

24.  (1988) 1 S.C.R. 30 ("Morgentaler")

25.  The article by Sharon Kirkey appeared in the March 6, 2015 edition of the National Post. We also refer the reader to the article written by Shanifa Nasser which appeared in the February 4, 2015 edition of the National Post entitled, "If Supreme Court decriminalizes physician-assisted suicide, doctors may be obligated to help with euthanasia."

26.  Resnicoff, p 615-616.