An essay donated by David Estill
Canadian Legislation and Euthanasia:
Can Society Tell Us How to Die?
Although this essay refers to the situation in Canada, much of it is directly applicable to the dozens of U.S. states that have not yet legalized any form of euthanasia. The appendix contains a very useful glossary of medical terms and list of works cited.
Overview and definitions:
‘Who owns my life?’ With these four words, Sue Rodriguez sums up the euthanasia argument beautifully. In this paper, we’ll be looking at euthanasia and the current Canadian legislation surrounding it. Specifically, we’ll be looking at a doctor’s role in a society that up examination holds some very confusion double standards. We’ll examine several cases and focus on the Sue Rodriguez case, along with the Supreme Court Ruling that has followed from the landmark case Rodriguez v. British Columbia (Attorney General). After a careful and critical review, it will become clear that society has placed a double standard on physicians in Canada, and that we as a whole should work to permit physician assisted euthanasia.
At the outset, we should be clear on a few definitions to be used throughout the paper.
- Euthanasia: The putting to death, by painless method, of a terminally-ill or severely debilitated person through the omission (intentionally withholding a life-saving medical procedure, also known as "passive euthanasia") or commission of an act ("active euthanasia') [Modified From Duhaime’s Canadian Law Dictionary, available online at www.duhaime.org]
- Physician assisted suicide: Euthanasia that is performed by a physician. [See Appendix I, Medical Definitions.]
- Voluntary Euthanasia: When a patient is euthanized at their request.
- Involuntary Euthanasia: When a patient is euthanized without their request being sought (for example, an infant with trisomy 21 and atresia of the digestive tract is chosen not to be fed by his/her parents). [See Appendix I, Medical Definitions.]
- Non-Voluntary Euthanasia: When a patient is euthanized against their wishes.
A state of tension in the Criminal code:
This paper will examine landmark cases where terminally ill patients have been euthanized, or have sought permission to be euthanized by the higher courts. At the beginning, it’s important to examine two sections of the Canadian Criminal Code (henceforth called the Criminal Code):
Section 241 states that: Every one 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.
Section 14 states that: 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.1
Relevant passages from the Canadian Charter of Rights and Freedoms (henceforth called the Charter) include
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
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.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
15. (1) 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, color, religion, sex, age or mental or physical disability.2
There seems to be inherent tension between sections 214 b) of the Criminal Code and sections 7, 12 and 15 of the Charter. These sections of positive law3 will come up frequently in the cases we will be examining. Is there a way to resolve the tension therein, and if so, is it enforceable under section 1 of the Charter? Where do physicians fit into this, with their unique positions of being both citizens and our doctors? Do they deserve a special place?
Case 1: Dr. Claudio de la Rocha:
In October of 1991, Mrs. A, who was suffering from chronic and terminal lung cancer in St. Mary’s Hospital in Timmons, Ontario, decided she wanted to die. She had been on a ventilator on and off for several months, and informed her family that she wished the ventilator tube to be removed. The family relayed these wishes to Dr. de la Rocha. Dr. de la Rocha then made the appropriate preparations, and injected Mrs. A with three doses of morphine as he withdrew the ventilator tube to alleviate pain, as per the standard practice. Dr. de la Rocha then continued by giving a dose of potassium chloride, a drug that causes the heart to stop when it is administered. Potassium chloride is commonly used in lethal injections.
Dr. de la Rocha was arrested and charged with second degree murder. The courts later settled with him and allowed him to plead guilty to the lesser charge of administering a noxious substance. The case was presided over by Honorable Mr. Justice S. Loukidelis who sentenced Dr. de la Rocha to 3 years, which was suspended. The College of Ontario Physicians and Surgeons charged him with professional misconduct (due to his conviction in the criminal court), and suspended his license for 90 days, the term of which would be suspended if he wrote them guidelines for removal of life support for terminally ill patients. The rational of this punishment by the Committee from the College of Ontario Physicians and Surgeons was that ‘it must be made clear to the profession and the public that arbitrary termination of life is not allowed; no further specific deterrence for Dr. de la Rocha is needed, as he is unlikely to re-offend.’4
Case 2: Dr. Nancy Morrison:
In 1996, Mr. B was being treated for esophageal cancer at the Queen Elizabeth II Health Sciences Centre in Halifax, NS. He had undergone six operations, which provided little help. He was being treated for complications and infections that had arisen from the six operations. He had approximately ten different tubes in him for everything from breathing and eating to catheters administering antibiotics and water to his body. Since surgeons had been unable to close his chest wall, pus was constantly oozing from his side. His family decided he should be removed from life support. Upon removing the ventilating tube from the patient, Dr. Morrison administered doses od morphine and hyrdomorphone as per standard practices. After two hours, Mr. B remained in extreme distress, and Dr. Morrison administered nitroglycerin to the patient, despite his having low blood pressure. After another 10 minutes, with Mr. B still in distress, Dr. Morrison administered potassium chloride, killing Mr. B within seconds.
Dr. Morrison was arrested and charged with first degree murder. After several months of strong petitioning by the public at large, the presiding judge decided that it was not in the public interest to pursue the first degree murder charges. The Crown could have either pressed manslaughter charges or appealed this verdict, but decided to do neither. The courts said nothing on the matter.
Dr. Morrison’s peers in the form of the New Brunswick College of Physicians and Surgeons gave a mixed verdict. The College said that while her actions were unacceptable and outside the boundaries of a practicing physician, she was to be commended for doing what she thought was the right thing and in her patients best interests. Dr. Morrison, in accepting the judgment said that she had made the wrong decision, but that in the course of being a physician, it is imperative to make decisions quickly when dealing with patients who are dying. She acted the best a physician could under the circumstances, stated the commission from the College, and no further reprimands were given to her.
Case 3: Sue Rodriguez:
Sue Rodriguez is the subject of perhaps the most famous case involving euthanasia in Canada. Rodriguez v. British Colombia (Attorney General) is a highly contested and oft cited case that made it all the way to the Supreme Court. We will examine this case and use it as a jumping off point into the greater legal issues surrounding Euthanasia in Canada, having now seen two rulings we can contrast with it.
Sue Rodriguez was a 42 year old woman who lived in British Columbia. She had a husband and a son, who was 8 and a half at the time of the hearings. Ms. Rodriguez suffers from amyotrophic lateral sclerosis (ALS, commonly called ‘Lou Gehrig’s Disease’): her life expectancy was 2 to 14 months, with a condition that is rapidly deteriorating. The ALS will further progress to the point where Ms. Rodriguez will be unable to swallow, walk, talk or move her body without assistance. Without the aid of a respirator, it is impossible to breathe; without a gastrotomy it is impossible to eat. Ms. Rodriguez was very aware of her condition, and the ultimate inevitability of how she was going to die. While she wishes to live life fully while she is able to, when she is no longer to enjoy life, she wished to let a medical practitioner set up means by which she might end her own life at the time of her choosing, by her own hand.
In a sharp contrast with the previous cases, Ms. Rodriguez was the one pursuing this course of action before she fell ill. She looked to the courts to allow her to make decisions on her own. Her argument was that section 241 b) of the Criminal Code was invalid, as it violated her rights under sections 7, 12, and 15(1) of the Charter. Her case was first brought forth to the Supreme Court of British Columbia, where it was struck down. It lost on appeal in the BC Court of Appeal, by a vote of 2 to 1. The dissenting opinion gave many plausible options and courses of actions that would render the assisted suicide to be within the grounds of the Criminal Code. Finally, the case was brought forth to the Supreme Court with surprising speed.
The Supreme Court came back with a 5-4 ruling in favor of supporting the BC court of Appeal, that is to say it found section 241 b) of the Criminal Code to be constitutional. Before we examine the assenting and dissenting opinions, let’s try to get a clearer picture on what it is that has to come to the court for them to decide that a piece of legislation is unconstitutional so they can strike it down.
Analysis of the Supreme Court decision:
The first piece of the puzzle is that a law must infringe on a Charter right. So, it can’t be discriminatory (as per section 15) or must not enforce cruel and unusual punishment (as per section 12). An issue arises here with section 7, which says that everyone has ‘the right not to be deprived’ of ‘the right to life, liberty and security of the person’ except ‘in accordance with the principles of fundamental justice’. The issue is that pretty much every law does this. Limiting liberty, after all, is what a law does. They make us pay taxes, they make us not ingest cocaine, they make us serve in the military during wartime if needed, and all of these seem to limit our personal freedom and/or endanger our lives. All the justices agree that the law prohibiting assistance in suicide infringes upon an individuals ability to control what happens to their body. So, there’s a very important subsection, which says that we can do it ‘in accordance with the principles of fundamental justice’. So, what we have here is that the majority is stating that the infringement on a person’s liberty and control of his body is in accordance with the fundamental principles of justice. The dissenting judges disagree.
The other piece of the puzzle is that for a law to be declared unconstitutional it has to be an unreasonable limitation on the exercise of that right or freedom. All laws are seen to have reasonable limits to them, even those that give us freedom from discrimination or that give us the right to vote. Laws which don’t have reasonable limits contravene the charter, and as such are seen to have no force or effect with them. It’s kind of neat in that if a law doesn’t take the proper form, it’s not a law at all. One of the arguments that is brought forward by the majority is that even if the law prohibiting assisting suicide is discriminatory towards those with physical disabilities (and here they are not saying that it is, they’re saying it might be, it might not be) it wouldn’t matter because it would be a reasonable limitation on the freedom of the right to equality without discrimination.
Justice Sopinka (on behalf of the majority) first starts out by saying that ‘s. 7 encompasses notions of personal autonomy… control over one’s physical and psychological integrity which is free from state interference’, which is admitting that the charter does in fact contradict s. 241 (b) of the Criminal Code. However, he goes on to say that ‘[a]ny resulting deprivation, however, is not contrary to the principles of fundamental justice’5. So, essentially, Sopinka is saying that yes, you have a great point but it doesn’t matter because it doesn’t contravene the principles of fundamental justice.
What then are the principles of fundamental justice? Sopinka says that they are legal principles that ‘must be capable of being identified with some precision and applied to situations in a matter which yields an understandable result’ (Rodriguez, 521). He says that the key to fundamental justice is balancing those interests of the state and those of the individual. So here we’re balancing human dignity for the individual, along with the right to freedom of their body with s. 241 (b) of the Criminal Code, in place to protect vulnerable individuals. Sopinka notes that most democratic societies have similar laws to 241 (b), and that to him indicates an across the board acceptance of this as being a principle of fundamental justice. He’s quick to say that the repeal of the Attempted Suicide law by Canadian parliament is not giving society’s acceptance of suicide, but that it was an ‘ineffectual and inappropriate tool for dealing with suicide attempts’ (Rodriguez 522). The fundamental values in society, Sopinka says, are against any law that would leave certain individuals vulnerable to harm. Any legislation that would allow assisted suicide would do just that in the eyes of the majority, so s. 241 (b) of the Criminal Code is not in violation of s. 7 of the Charter.
As per s.12, Sopinka says it doesn’t apply. He says that it isn’t the state that is subjecting anybody to any forms of cruel and unusual punishment. ‘Treatment’ is more that just the prohibition of certain actions by the state, he says. ‘There must be some more active state process in operation, involving an exercise of state control over the individual’ (Rodriguez, 522) for it to constitute ‘treatment’, according to the majority. Such stretching of the bounds of being ‘subjected to… treatment’ is unreasonable, and as such he dismisses the idea.
As mentioned briefly, Sopinka decides not to debate if s. 15 is violated by s. 241 (b). Instead, he assumes that it is in fact violated but is protected because s. 1 of the charter allows for reasonable limitations. 241 (b) meets what is called a ‘proportionality test’, which asks if the law is proportional to the objective of the law, says Sopinka. Now the tricky thing here is that in 1972 when the legislature decided to repeal the law against attempted suicide, it effectively gave Canadians the right to choose how and when they die. In those who are physically disabled, however, and cannot choose to take their life, they are restricted in this liberty, unless they can receive assistance in the matter (which is explicitly made illegal by s. 241 (b)). Sopinka thinks that this is missing the point. The fact that parliament repealed the attempted suicide law isn’t because it condones suicide, but because it was ineffective. The load on the criminal courts was counter productive, especially considering the circumstances that individuals who were in such a sorry state as to need to be attempting suicide were already in. There are many social and medical programs in place to help them, so parliament decided that that was good enough. They weren’t saying, says Sopinka, that it was okay, but just that it was being dealt with by enough other areas of the government that the courts need not concern themselves with it. So the fact that physical disability prevents someone from doing something that the government is trying to stop anyway (albeit through modes not of the criminal court here) isn’t hindering parliamentary wishes at all. Sopinka also notes that even if parliament was trying to give us a new freedom, there would be no way to adequately protect the vulnerable. Besides, how can we logically deny the exception on grounds of physical disability to those who are terminally ill, but not to those who are otherwise physically disabled? Sopinka says it isn’t possible, and for that reason he says that s. 15 of the Charter isn’t a problem. ‘[T]he balance between the restriction and the government objective is met’ (Rodriguez,523) he concludes, and with that is satisfied that he has addressed the constitutionality of s. 241 (b) of the Criminal Code with regards to s. 7, 12, and 15 of the Charter.
McLachlin (for the dissent) starts off by declaring that ‘[s]ection 241 (b) of the Code infringes the right to security of the person included in s. 7 of the Charter’. At issue, he says, is personal dignity and that people have the right to do with their body as they choose. The real problem is in that the legislature has made suicide legal by repealing the attempted suicide law, but that s. 241 (b) effectively makes this law unavailable to those who are physically unable to do so. This prevents individuals from exercising the autonomy over their bodies that they are constitutionally entitled to, and that able bodied individuals are. It is important to note that he is arguing this under s. 7 of the Charter, not s. 15, with his cause being that ‘[t]he denial of the ability to end their life is arbitrary and hence amounts to a limit on the right to security of the person which does not comport with the principles of fundamental justice’.
McLachlin goes on to say that under s. 1 of the Charter, s. 241 (b) of the Criminal Code is unjustified. McLachlin says that the reason that s. 241 (b) is in place at all is to protect the abuse of assisted suicide, in that it might be used to unlawfully kill people who aren’t willingly consenting to it. Murder is already prohibited in the criminal code, says McLachlin6, and so the fear that assisted suicide will be used as such is unfounded. If there are worries about whether consent is given readily and voluntarily, it would be easy for there to be a required court order for a physician to help in assisting suicide. This small remedy would be easy enough to put in place, and will ensure that only people who are absolutely sure that they are ready to terminate their own lives will be euthanized, at the same time making sure that they will in fact be allowed to make the choice to end their lives. He ends by saying that ‘the remedy proposed is generally agreed with. What is required will vary from case to case. The essential 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 applicant.’ (Rodriguez, 524)
Whereas McLachlin doesn’t think that s. 15 has any bearing on the case, Lamer (another dissenting judge), does. His arguments are similar to those that we’ve seen earlier, but he’s applying them not saying that it is contrary to the fundamental principles of justice as McLachlin was, but rather says that s. 241 (b) is discriminatory. The inequality arises, Lamer says, in that persons who are physically unable to end their own lives unassisted are now less free than those who can take their own life lawfully simply because of their physical ability.
Lamer also goes on to argue that s. 241 (b) of the Criminal Code is not justifiable under s. 1 of the Charter. He says that the noble idea of protecting the vulnerable is really good, and is sufficient for overriding a constitutional right, but that ‘s. 241 (b) fails to meet the proportionality test’ (Rodriguez, 525). While the vulnerable individuals are protected, Lamer says that the law is over-reaching, bringing in with the vulnerable individuals those who have no need or desire to be protected merely by virtue of their having a disability. This is an absolute prohibition, says Lamer, and as such the law is far and away unconstitutional. Even the fear of people with physical disabilities being manipulated into agreeing to assisted suicide doesn’t justify the over-arching effects of the law. He then cites section 52 (1) of the Constitution act of 1982, which says ‘52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.’7 This, coupled with the fact that the law is unconstitutional, has Lamer call for the legislation to be struck down and ‘suspended for one year from the date of this judgment’ (Rodriguez, 525). Pursuant to standard practices the law is then sent to parliament for revision and changes if they choose to make any. Lamer goes further in that he also wants to enforce section 24 (1) of the charter (which states that ‘Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances’), which if he had been in the majority would effectively allow Rodriguez to go and seek assistance to commit suicide immediately.
Somewhere a little bit more moderate that Lamer is the final dissenting opinion, written by Justice Cory. Cory starts off saying that ‘dying is an integral part of living and, as a part of life, is entitled to the protection of s. 7’ (Rodriguez, 526). He says that it would be an affront to human dignity if we were to enforce laws that caused people to die a ‘dreadful, painful death’ (Rodriguez, 526).
Although most of his arguments resemble those of Lamer and McLachlin, Cory raises at least one unique and very interesting point. Cory agrees with the prescription that is laid down by Lamer in the end, but before that he says that ‘[t]here is no difference between permitting a patient of sound mind to choose death with dignity by refusing treatment and permitting a patient of sound mind who is terminally ill to choose death with dignity by terminating life preserving treatment, even if, because of incapacity, that step has to be physically taken by another on her instructions’ (Rodriguez, 526). This is a tact that hasn’t been seen thus far, and is highly important. Why does the role of the physician change from primary caretaker to murderer when she is merely looking out for her patients interests, and respecting the wishes of her patient and her family in the case of the physician administering drugs, but when the physician stops treatment at the bequest of the patient and her family and allows the patient to die, is considered being a respectable and responsible doctor.
For this, I give you a few hypothetical situations. First consider Mrs. Smith. Mrs. Smith has just been diagnosed with terminal brain cancer. If left untreated, Mrs. Smith will surely die in two weeks. She will be totally mobile and of sound mind until she dies, however (i.e. it will be a sudden deterioration after one week, not a gradual decline). Her other option is that she can go onto chemotherapy, and will be able to live for 3 months, but will have to commence chemotherapy immediately. On chemotherapy, she will be bed bound, nauseous for the duration of the time, and will be in pain throughout.
It’s not unreasonable to think that Mrs. Smith would choose the first option. Perhaps she has made her peace with the world, and wants to spend her last days being able to live life normally. Nobody would think twice about this. However, the physician, by not insisting that she take the chemotherapy, is decreasing her life by two and a half months. Yet this action is permissible by law and encouraged by the Ontario College of Physicians and Surgeons as being the appropriate, professional and medically respected thing to do.
Take Mrs. Young in the second case. Mrs. Young has esophageal cancer. She has been battling for years with this, and her doctor has just told her that she is terminally ill. This prognosis has been verified independently by many doctors, all of whom agree on the rather tragic news. She has three months to live. Esophageal cancer is particularly painful, and generally requires a patient to be intubated for the last several weeks of his/her life. Mrs. Young has no interest in this, and although she wants two weeks to settle her affairs, she wishes to be euthanized after this time, so that she might die in less pain and suffering than otherwise, and without having to go through the painful, invasive procedure of a tracheotomy required for intubation.
Any doctor that bends to the wishes of Mrs. Young, under the eyes of the law, is a murderer. Yet, in effect, the essentials are the same in both cases: both Mrs. Young and Mrs. Smith are faced with choosing between 3 months of pain or 2 weeks pain free, at the expense of the other two and a half months. Both patients make the decision of their own free will, without any outside coercion, in a sound state of mind. Wherein, then, lies the difference? In the case of Mrs. Smith, the physician doesn’t do anything. Her patient, Mrs. Smith, will die. In the second, if the physician yields to the requests of Mrs. Young, the physician administers a lethal dose of some drug. Does the responsibility of the physician lie in that during the case of Mrs. Young there is an action?
Well, let’s see. Imagine a group of people who are all out on a yacht. Lets say that a group decides to go swimming, and after they jump in, they realize that they have forgotten to throw down the rope latter. Captain Jack, on board, hears their cries, wanders over to see what has happened. The rope ladder sits right next to him, and he decides not to toss it down, full well knowing that the crew will die. Of course he is responsible for the drowning deaths of his crew. If he had tied cinder blocks to their ankles and thrown them overboard, he would have been just as guilty of drowning them.
So it appears that inaction is action. This makes sense, and if we then apply this to the problem at hand, we see that the legislation as it stands holds an impossible double standard. Since the passive euthanasia of Mrs. Smith and the active euthanasia of Mrs. Young have the same moral value (in both cases, physicians actions (or inaction, which we know is action) brings about premature death), they should be treated the same. But as the legislation stands right now, this is not the case at all. People are free to terminate treatment at any time, but can’t receive the care they want at the end of the life if it means imminent death.
We should treat both of our cases at hand in the same way. The Supreme Court has rejected the idea of active euthanasia, as we examined in detail in Rodriguez v. British Columbia (Attorney General). If this is the case, then it is incumbent upon the court to criminalize the act of passive euthanasia, and enforce that everyone has to live as long as they possibly can with all the heroic measures taken, against their will. Following this, we should press criminal charges against any doctor that has allowed one of their patients to stop treatment.
Of course, this would be absurd. What only makes sense is that if I have the right to life, I also have the right to take that life when I see fit. If I am unable to take my own life, I should be able to seek help through the proper channels. The role of physicians will be to oversee euthanasia, and ensure that it is performed in a way that preserves the dignity and sanctity of life. By forcing terminally ill patients who are physically unable to go to physicians, it would be easy to regulate by ensuring that physicians make sure that the patient has sought the appropriate course and gotten the courts approval. The court, in turn, can make 100% sure that this is an acceptable candidate (that her wishes have been preserved, that she is in full control of her faculties and is the sole author of the decision). It will also assure that patients die quickly and painlessly under the supervision of a caring provider, as opposed to having to resort to dangerous and unsure methods that are used by those non physicians. It seems to be the role of the physician as the palliative caregiver and qualified, responsible person to respect the wishes of her patient while also being aware of legislation in place. The Supreme Court of Canada should revisit its arguments in Rodriguez v. British Columbia (Attorney General) and amend them so as to allow physician assisted suicide.
After a careful and critical review of some past case law, with an emphasis on Rodriguez v. British Columbia (Attorney General), it becomes clear to see that society has placed a double standard on physicians in Canada today through legislation it has passed. As dutiful citizens, it’s our duty to remedy this situation so that in the future we won’t be faced with the same issues. All I know is that if I’m ever in such a situation, I really hope that I’ll be able to make a choice for my own body that I’m happy with, and have the support from those I love in my family and trust in the medical professionals. Whose life is it, anyways?
Originally posted on 2010-NOV-19
Latest update on: 2010-NOV-19
Written by David J. Enstill