EUTNANASIA: Should it now be legal in Canada? (Part 2)

In 1973 while I was in my third year of studying criminology at the University of Toronto, I arrived late in one of my classes and all the topics in which we were to write a paper on were all chosen by my fellow students and the only one left was on the subject of euthanasia. I had no real idea as to just how difficult writing a paper on that subject would be. In any case, as I delved into the subject of euthanasia, I discovered just how difficult it is for everyone including terminally ill persons, their doctors and their family members to deal with euthanasia and accept it as one way to save terminally ill persons from further pain. I was at that time a member of the Corrections Committee of the Anglican Church and I was asked to write an opinion on that subject and submit it to the Church. In November of that year, an international medical journal called ‘Modern Medicine’ published my paper and I was later told that it was published in a number of countries around the world. That same year, it was published in a law journal and at that time, the Toronto General Hospital in Toronto invited me to give a lecture on that subject to a large number of the hospital’s doctors and nurses. Writing on that topic isn’t as difficult nowadays as it was then however the subject is still one that is widely discussed and to some people, a contentious issue.  In this piece, I am going to submit to my readers the second of three court cases which took place in Canada that dealt with euthanasia. But first, I will briefly explain what euthanasia is.  

 Legislation on euthanasia in Canada distinguishes between passive and active euthanasia, although the active procedure remains illegal. Passive euthanasia can include starvation or de-hydration, or withholding any life-preserving procedures. Sometimes the patient will sign a “Do Not Resuscitate’form and on occasion, family members have also signed such forms when their stricken loved one cannot do it.  Active euthanasia comes about when someone other than the patient brings about the death of the patient generally with the patient’s blessing.

 In recent years, several public cases of active euthanasia have re-opened the debate on what Canadian society considers to be socially and morally acceptable in terms of euthanasia. Incidentally, euthanasia is also called ‘mercy killing’.

 And now, the second case.

Sue Rodriguez

As a mother in her early thirties, Sue was slowly dying of Lou Gehrig's disease. The disease is named after a famous baseball player who died from it. She lived for several years with the knowledge that her muscles would, one by one, waste away until eventually the time would come when, fully conscious, she would slowly choke to death since she would no longer have any more control over her breathing because the diaphragm which is a thin muscle just above the intestines and immediately below the lungs, slowly waste away. It is the diaphragm that controls a person’s inhaling and exhaling.

Anyone who has ever suffered from congestive heart failure (and I did back in 2010 and 2011) will understand the fear that develops in their mind as fluid begins to clog up their lungs and they become very short of breath. I can really appreciate the fear that Sue was experiencing for I too feared suffocating to death. I was treated for this ailment and I am OK now but for Sue, there is no cure for what she had.

She begged the courts to reassure her that a doctor would be allowed to assist her in choosing the moment of death. The courts refused. She lived on in terror. When her case went before the Supreme Court of Canada, it was then that the court began to look at the euthanasia issue again. 

The court’s decision was arrived at in May 1993. The opposing side was the Attorney General of British Columbia. There were also eight organizations submitting their views both for and against euthanasia.  

The court was aware that her condition was rapidly deteriorating and that she would soon lose the ability to swallow, speak, walk or even move her body without assistance. Further, she would also lose the capacity to breathe without a respirator, to eat without a gastrotomy and would eventually become confined to a bed. Her life expectancy would be between 2 and 14 months. In other words, her life while she was wasting away would be a living hell.

There is no doubt in my mind that the justices hearing her case were very sympathetic to her cause but they, like all judges are bound by the laws of our country, just as everyone else is. However, there can be exceptions and that is what the court had to decide. Did she fall into the area of law that would permit her to die with dignity because of the exception available to her? More importantly, was that exception really available to her.

The court gave this issue a great deal of attention. As a matter of fact, their decision was written in 36,595 words which is evidence of the kind of attention the court gave to this important issue.  

The court was aware that Sue didn’t want to die right away while she still had the capacity to enjoy life. She wanted to die when her life would be one of terrible suffering. For this reason, she applied to the Supreme Court of British Columbia for an order that wection 241(b) of the Criminal Code, which prohibits the giving of assistance to commit suicide, be declared invalid on the ground that it violated her rights under sub section 7, 12 and 15(1) of the Charter of Rights and Freedoms and is therefore, to the extent it precludes a terminally ill person from committing ‘physician‑assisted’ suicide, of no force and effect by virtue of section 52(1) of the Constitution Act 1982.

The court dismissed Sue’s application and the majority of the Court of Appeal affirmed the judgment of the lower court. Hence the matter was now going to be dealt with by the Supreme Court of Canada.

In the Supreme Court of Canada ruling, five of the jurists said that security of the person in sectioin 7 encompasses notions of personal autonomy (at least with respect to the right to make choices concerning one's own body), and control over one's physical and psychological integrity which is free from state interference, and basic human dignity. They also said that the prohibition of assisted suicide in section 241(b), which is a sufficient interaction with the justice system to engage the provisions of section 7, deprives the appellant of autonomy over her own body while it suffers  from her physical pain and psychological stress in a manner which impinges on the security (wellbeing) of her body.

The expression "principles of fundamental justice" in section 7 of the Charter implies that there is some consensus that these principles are vital or fundamental to our societal notion of justice. They must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result. There must also be legal principles to consider.

Fundamental justice requires that a fair balance be struck between the interests of the state and those of the individual. The respect for human dignity, while one of the underlying principles upon which our society is based, is not a principle of fundamental justice within the meaning of section 7.

Assisted suicide, outlawed under the common law,(previous court decisions)  has been prohibited by Parliament since the adoption of Canada's first Criminal Code that was published in 1906. Sue wanted that section of the Criminal Code to be invalid so that she and others like her could have their lives terminated with the assistance of a medical doctor.

The long‑standing blanket prohibition in sectioin 241(b) which fulfills the government's objective of protecting the vulnerable, 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.

I find that opinion rather interesting because until 1962 when two men in Canada were hanged for murder, the courts (including the Supreme Court of Canada) didn’t have a problem allowing lives to be taken. This state policy is now part of Canada’s fundamental conception of the sanctity of life. A blanket prohibition on assisted suicide similar to that in section 241(b) of the Code also seems to be the norm among Western democracies, and such a prohibition has never been adjudged to be unconstitutional or contrary to fundamental human rights albeit there are some places such as Oregon, Washington and Montana, all which are in the United States where doctor assisted suicide is permitted.

Further, euthanasia is also legal in other countries such as: The Netherlands. Belgium, Switzerland, Albania and Luxembourg.

The five jurists also recognized that here are concerns about abuse and the great difficulty in creating appropriate safeguards which would convince many people that a blanket prohibition on assisted suicide is not arbitrary or unfair. The prohibition relates to the state's interest in protecting the vulnerable and is reflective of fundamental values at play in our society. For this reason, the court determined that section 241(b) of the Criminal Code of Canada therefore does not infringe section 7 of the Charter.As well, that same section of of the Code does not infringe section 12 of the Charter. (the right not to be subjected to cruel and unusual treatment which can apply to prisons and hospitals).

They said that it is preferable in Sue’s case not to decide the difficult and important issues raised by the application of section 15 of the Charter , but rather to assume that the prohibition on assisted suicide in section 241(b) of the Code infringes section 15 of the Charter since any infringement of section 15 by section 241(b) of the Code is clearly justified under section 1 of the Charter.

To understand that paragraph better, I will explain section 15(1) and section 1 of the Charter.  Section 15(1) affirms that everyone is equal under the law and section 1 affirms that the rights and freedoms guaranteed by the Charter are only subjected to reasonable limits.

Finally the five jurists said that a prohibition on giving assistance to commit suicide is rationally in conflict with the purpose of  section 241(b)  of the Criminal Code, which is to protect and maintain respect for human life. They also said that that in order to protect life and those who are vulnerable in society effectively, a prohibition without exception (even for those suffering from a terminal illness) with respect to the giving of assistance to commit suicide; is the best approach.

Two of the jurists had a different view of Sue’s application.

They said that Section 241(b) of the Code infringes the right to security of the person included in section 7 of the Charter. According to them, this right has an element of personal autonomy, which protects the dignity and privacy of individuals with respect to decisions concerning their own body.

Their reasoning is sound when you consider that a legislative law which limits the right of a person to deal with his or her body as he or she chooses may violate the principles of fundamental justice under section 7 if the limit is arbitrary.

They said that when one is considering whether a law breaches the principles of fundamental justice under section 7 by reason of arbitrariness, the focus is on whether a legislative law infringes a particular person's protected interests in a way that cannot be justified having regard to the objective of the law. The principles of fundamental justice require that each person, considered individually, be treated fairly by the law.

There was a legitimate fear on the part of those two jurists that abuse may arise if an individual is forced to face a situation in which he or she is wrongly denied any part of his or her own decision at the section 7 stage of the Charter. Any balancing of societal interests against the interests of the individual should take place within the confines of section 1 of the Charter.

The two jurists raised an interesting anomaly in law when they said that Parliament had put into force a legislative law in the Code which doesn’t say that suicide is unlawful but assisted suicide is unlawful. The effect of this distinction is to deny to some people the choice of ending their lives with the assistance of others solely because they are physically unable to do so, thereby preventing them from exercising the complete autonomy over their bodies that is available to other people.

This means that the denial of the ability to end their lives is arbitrary and hence amounts to a limit on the right to security of the person which does not conform with the principles of fundamental justice.

They pointed out in their opinion that section 241(b) of the Code is not justified under section 1 of the Charter. That is because the practical objective of section 241(b) of the Code is to eliminate the fear of lawful assisted suicide's being abused and resulting in the killing of persons not truly and willingly consenting to death. However, neither the fear that unless assisted suicide is prohibited, it will be used for murder, nor the fear that consent to death may not in fact be given voluntarily, is sufficient to override anyone’s entitlement under section 7 to end their lives in the manner and at the time of their choosing. The safeguards in the existing provisions of the Crimninal Code largely meet the concerns about consent. The Code provisions, supplemented, by way of remedy, such as a stipulation requiring a court order to permit the assistance of suicide in a particular case only when the judge is satisfied that the consent is freely given, will ensure that only those who truly desire to bring their lives to an end to their suffering can obtain assistance from a doctor in doing so.

 Obviously, what would be required to justify assisted suicide would vary from case to case. The essential aspect in all cases is that the judge be satisfied that if and when the assisted suicide takes place, it will be with the full and free consent of the person seeking it.

One of the dissenting jurists said that section 241(b) of the Code infringes the right to equality contained in section 15 of the Charter. While, at first sight, section 241(b) is apparently neutral in its application, its effect creates an inequality since it prevents persons physically unable to end their lives unassisted from choosing suicide when that option is in principle available to other members of the public without contravening the law. This inequality—the deprivation of the right to choose suicide may be characterized as a burden or disadvantage, since it limits the ability of those who are subject to this inequality to take and act upon fundamental decisions regarding their lives and persons. For them, the principles of self‑determination and individual autonomy, which are of fundamental importance in our legal system, have been limited. This inequality is imposed on persons unable to end their lives unassisted solely because of a physical disability, a personal characteristic which is among the grounds of discrimination listed in section 15(1) of the Charter.

 He also said that section 241(b) of the Code is not justifiable under section 1 of the Charter. While the objective of protecting vulnerable persons from being pressured or coerced into committing suicide is sufficiently important to warrant overriding a constitutional right, section 241() of the Code fails to meet the proportionality test. The prohibition of assisted suicide is rationally connected to the legislative objective, but the means chosen to carry out the objective not to impair a person’s equality rights as little as reasonably possible. The vulnerable are effectively protected under section 241(b) but the section is over‑inclusive. Those who are not vulnerable or do not wish the state's protection are also brought within the operation of section 241(b) solely as a result of a physical disability. An absolute prohibition that is indifferent to the individual or the circumstances cannot satisfy the constitutional duty on the government to impair the rights of persons with physical disabilities as little as reasonably possible. The fear that the decriminalization of assisted suicide will increase the risk of persons with physical disabilities being manipulated by others does not justify the over‑inclusive reach of section 241(b) especially if there are safeguards in place.

 The two dissenting jurists concluded that in view of their conclusions under section 15(1), there is no need to address the constitutionality of the legislation under sub section 7  or 12 of the Charter.

 They said that pursuant to 52(1) of the Constitution Act , 1982,   section 241(b) of the Criminal Code should be declared to be of no force or effect, on the condition that the effect of this declaration be suspended for one year from the date of this judgment to give Parliament adequate time to decide what, if any, legislation should replace section 241(b) of the Criminal Code.  

 While a personal remedy under section 24(1) of the Charter  is rarely available in conjuncture with action under sectioin 52(1), it is appropriate in this case to grant the appellant, (Sue) subject to compliance with certain stated conditions, a constitutional exemption from the operation of section 241(b) during the period of suspension. A constitutional exemption may only be granted during the period of a suspended declaration of invalidity. During that one‑year suspension period, this exemption will also be available to all persons who are or will become physically unable to commit unassisted suicide and whose equality rights are infringed by section 241(b) and it may be granted by a superior court upon application if the stated conditions, or similar conditions tailored to meet the circumstances of particular cases, are met.

 As to be expected, the majority in any appeal court always has the final word on the subject and the majority of the jurists hearing Sue’s application denied her the right to put an end to her suffering though the assistance of doctor in Canada.

Sue eventually found a doctor in one of the States in the US who, in February 1994, covertly evaded the Canadian law to help her die in peace. A law on assisted suicide with rigorous safeguards could have saved her the nightmare during those months before her death, given her the confidence to carry on with the reassurance that when it got too bad she could rely on a compassionate doctor to follow her wishes at the end.

If you are against euthanasia as a means of ending your suffering especially if you are suffering from Lou Gehrig's disease—consider the following. Eventually all your muscles will cease to function as they will have wasted away. Your breathing will be done with a machine. Your eyes will have to be permanently closed because your eyelids won’t function anymore. You will not be able to speak or eat as your mouth will have to be closed since your tongue and lips and your jaw won’t function anymore. You will be fed with a tube that is inserted into your abdomen and directly into your stomach so you won’t be able to enjoy the taste of food. You will urinate and defecate in bags in which are attached to your very private areas. You will not be able to communicate with your hands or your fingers as the muscles in them will be useless. Your body will be moved every few days in your bed so that you won’t suffer from bed sores. You may even be placed in a wheelchair on occasion but the only thing that will be left for you to enjoy in life is the sound of music and voices. A television set or radio or both will be placed in your room and that would be a pleasure for you to listen to but that would be the extent of your pleasure shared with your dreams and memories. How long would you want to live like that? A year, ten years, twenty years? If finally you have had enough of living like a vegetable, you won’t be able to communicate with your doctor about your wish to be put out of your misery even if euthanasia is permitted.

I think most people are terrified of living like that. Sue Rodriguez certainly was and who can blame her for taking the opportunity given to her by a doctor to end her life that she knew was going to be a life fraught with horror? She took that opportunity outside of Canada and finally ended her life of misery.