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Service, not Servitude
Legal Commentary

Legalizing therapeutic homicide and assisted suicide

A tour of Carter v. Canada

Carter v. Canada (Attorney General) 2012 BCSC 886.
Supreme Court of British Columbia, 15 June, 2012.
Vancouver, British Columbia.

Sean Murphy*

It is beyond the scope of this paper to examine the evidence presented at the trial in detail, something that cannot be done without access to all of the documents and transcripts of the proceeding. However, it is possible to summarize the judge's findings on issues that were central to her reasoning and determined the outcome of the case. The latter primarily concern the question of whether or not it is possible to establish safeguards that will prevent harms that might flow from legalizing assisted suicide and euthanasia.

CONTENTS

Abstract
I. The decision
II. Legal background
III. The litigation

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

III.2 Constitutional claim: jurisdiction over health care

III.3 Remedy sought

III.4 New plaintiff joins case

IV. The trial

IV.1 Summary trial process

IV.2 Overview of the analytical method

IV.3 Burden of proof

IV.4 Standard of proof

IV.5 The evidentiary record

V. Judge's review of the evidence

V.1 Introduction

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

V.3 Feasibility of safeguards: risks to patients

VI. The legal analysis

VI.1 Finding of "discrimination"

VI.2 The question of justification

VI.3 Purpose of the law

VI.4 Minimal impairment: the meaning of "effective"

VI.5 Proportionality

VI.6 Life, liberty and security of the person

VII. The remedy

VII.1 Declaration of invalidity

VII.2 "Constitutional exemption"

VIII.  Summary
IX.  Postscript
Appendix "A" : The Witnesses

A1 Overview

A2 Defendants' witnesses

A3 Plaintiffs' witnesses

A4 Assessing the evidence of the witnesses

Appendix "B":  Carter Part VII:  A Judicial Soliloquy on Ethics

B1  A note of caution

B2  The question addressed in Part VII

B3  Plaintiffs' claim shapes and limits the analysis

B4  Ethics: which one?

B5  Medical ethics

B6  Ethics of society

B7  Summary of the ethical debate

B8  Conclusions about the ethical debate

B9  Carter Part VII: in brief

B10  Carter Part VII: A judicial soliloquy on ethics

Appendix "C": Carter Part VII: Postscript

C1 Introduction

C2 Palliative sedation

C3 Patient autonomy: the distinction between legal and ethical evaluation

C4 Proportionality of interventions

C5 Withdrawal and refusal of assisted nutrition and hydration

C6  Intention

C7. Summary


Abstract

A British Columbia Supreme Court Justice has struck down Canada's absolute ban on assisted suicide as well as the rule that one cannot legally consent to be murdered. The decision pertains only to cases of physician-assisted suicide or homicide. She has suspended the ruling for a year to give the government time to decide how to respond, but, in the meantime, has ruled that a physician may help one of the plaintiffs to commit suicide or provide her with therapeutic homicide. The government of Canada has filed notice of appeal.

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

It was not thought reasonable to demand that a system of safeguards be 100% effective. A different standard was required. The standard chosen was the current regime of end-of-life practices, since the outcome of a mistake in this regime ('death before one's time') is the same as the outcome of a mistake in regulating assisted suicide.

Patient safety in end-of-life care is currently ensured by the principle of informed consent, assessment of patient competence, and the use of legal substitute decision-makers for incompetent patients. Since these measures are considered sufficient for the purposes of withholding, withdrawing or refusing treatment, it was decided that they should be sufficient for the regulation of assisted suicide for competent adults.  The burden of proof was on the defendant governments to prove that this could not be done. The text of the ruling indicates that they provided evidence of risk, but failed to prove that safeguards cannot be effective.

Madam Justice Smith does not rely on any part of the ethical discussion in Part VII of the ruling in reaching her conclusion about the constitutional validity of the law against assisted suicide. The discussion of ethics in Part VII is a judicial soliloquy that is likely to capture the attention of readers, but it is likely to distract them from the pith and core of the judgement and contribute to rather than minimize confusion and controversy.

In legal argument, keeping prudent silence about morality, philosophy or religion does not produce a morally neutral judicial forum. It simply allows dominant moral or philosophical beliefs to set the parameters for argument and adjudication. However, in the case of conscientious objection to participation in assisted suicide or therapeutic homicide, an appeal to freedom of conscience or religion must make direct reference to the beliefs of the objector about the moral nature of the act to which he objects.


I. The decision

I.1 A British Columbia Supreme Court Justice has struck down Canada's absolute ban on assisted suicide as well as the rule that one cannot legally consent to be murdered.1 The lengthy judgment of Madam Justice Lynn Smith in Carter v. Canada was delivered in June, 2012, following a trial in the fall of 2011. It pertains only to cases of physician-assisted suicide or homicide.2 She has suspended the ruling for a year to give the government time to decide how to respond, but, in the meantime, has ruled that a physician may help one of the plaintiffs, Gloria Taylor, to commit suicide or provide her with therapeutic homicide, depending upon her medical condition at the time she wishes to die.3 The government of Canada has filed notice of appeal.

II. Legal background

II.1 The decision is particularly noteworthy because of the 1993 Supreme Court of Canada decision in Rodriguez v. British Columbia (Attorney General).4 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 are very similar, so the ruling raises important questions about the doctrine of precedent, the legal rule of stare decisis: the practice of lower courts being bound by higher courts' rulings.

II.2 The Hon. Antonio Lamer, Chief Justice of the Supreme Court of Canada in 1993, was one of the dissenting minority who supported Rodriguez's application. He was willing to order a physician to assist her in suicide, but did not do so because she had not sought such an order.5 A young lawyer named Jocelyn Downie was a clerk for the Chief Justice at the time.6

II.3 Jocelyn Downie is now a professor in the Faculties of Law and Medicine at Dalhousie University in Halifax, Nova Scotia. She is a Fellow of the Royal Society of Canada and the Canadian Academy of Health Sciences, and Canada Research Chair in Health Law and Policy.7

II.4 In a 2007 symposium at Carleton University in Ottawa,8 Professor Downie asserted that the Supreme Court of Canada might be willing to reverse its 1993 ruling in Rodriguez.9 She outlined the strategy for a legal challenge under Canada's Charter of Rights and Freedoms (the Charter) and said that she was looking for an ideal test case to use to strike down the law.10 She published a paper and essay in 2008 that appear to have drawn from her Carleton presentation. The 2007 presentation and subsequent publication set out the strategy for the plaintiffs' successful argument in Carter.11 Professor Downie assisted the plaintiffs in the Carter case in instructing their expert witnesses.12

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

 The plaintiffs claimed that the law violates the Charter guarantee of equality (Section 15) because able-bodied persons can commit suicide without assistance, but disabled persons may not be able to do so, and are thus "deprived of the ability to choose and carry out their death in any lawful way."

III.1.1 The case began in April, 2011, with a claim filed by the BC Civil Liberties Association (BCCLA), family physician Dr. William Shoichet of Victoria, B.C. and Lee Carter and her husband, Hollis Johnson. Lee Carter's 90 year old mother had committed suicide at the Dignitas facility in Zurich, Switzerland, in 2010, because assisted suicide was illegal in Canada.13

III.1.2 The plaintiffs claimed that the law violates the Charter guarantee of equality (Section 15) because able-bodied persons can commit suicide without assistance, but disabled persons may not be able to do so, and are thus "deprived of the ability to choose and carry out their death in any lawful way."14 They also argued that the law against assisted suicide violates Charter guarantees of "life, liberty and the security of the person" (Section 7) with respect to the "grievously and irremediably ill," who seek physician-assisted suicide15 and persons wishing to assist them to obtain that service,16 including physicians.17

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" are matters that fall within the "exclusive jurisdiction" of the provinicial government, which is constitutionally mandated to manage health care.18 Since (according to the plaintiff physician) physician-assisted suicide and voluntary euthanasia are "important component[s] of the provision of health care to grievously and irremediably ill patients,"19 the lawsuit asked that sections of the Criminal Code (a federal statute) that prevent 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."20

III.3 Remedy sought

III.3.1 In short, the plaintiffs sought the court-ordered legalization of physician-assisted suicide and euthanasia by physicians, or by persons acting under their direction21 for anyone "grievously and irremediably ill" (not "terminally ill"). Similarly, the BCCLA press release referred, not to terminal illness, but to "serious illness that cannot be remedied" and "seriously and incurably ill individuals." Though it seems that the Association was thinking primarily of "mentally competent adults,"22 no age restriction was indicated.23

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.24 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.25

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.26 However, this conclusion may be implicit in the ruling,27 and, if so, may yet have significant consequences.

IV.2 Overview of the analytical method

IV.2.1 Madam Justice Smith followed the analytical method established by precedent in adjudicating the claims of violations of equality guarantees (Charter Section 15) and life, liberty and security of the person (Charter Section 7).

IV.2.2 With respect to equality (Section 15)28 the following questions are considered:

A. Is the law discriminatory? That is:

1) Does it create a distinction based on physical disability?

2) Does the distinction create a disadvantage?29

B. If the law is discriminatory, can it, nonetheless, be demonstrably justified as a reasonable limit prescribed by law in a free and democratic society under Section 1 of the Charter?30 That is:

3) Is the purpose pressing and substantial?

4) Are the means proportionate to the end? Specifically:

a) Is the limit rationally connected with the purpose?

b) Does the limit minimally impair the Charter right?

c) Is the law proportionate in its effect?31

IV.2.3 The analysis of alleged violations of life, liberty and security of the person (Section 7)32 is different, but some aspects of the analysis overlap with the Section 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?33

b) Is the law overbroad?34

c) Is the effect of the law grossly disproportionate to the problem it addresses?35

C. Again, if the law contravenes principles of fundamental justice, can it, nonetheless, be demonstrably justified under Section 1 of the Charter?36

IV.2.4 There is some dispute about the necessity of this step (C) if a Section 7 violation is demonstrated,37 but this is a moot point because the judge stated that her conclusion in this case would be identical to her conclusion in the Section 15 analysis (above).38

IV.3 Burden of proof

IV.3.1 With respect to equality claims under Section 15, the burden of proof lies on the plaintiffs to show that the law is discriminatory. Under Section 7 they must prove that the law deprives them of life, liberty or security of the person and violates principles of fundamental justice.39 Madam Justice Smith noted that, with respect to the latter, the plaintiffs must show either that the law is not the least restrictive that could have been chosen to achieve its purpose,40 or that it is so extreme that it is "disproportionate to any legitimate government interest."41

IV.3.2 Once the plaintiffs have proved that the law is discriminatory and/or that it improperly deprives them of life, liberty or security of the person, the burden of proof shifts to the government to justify the law under Section 1 of the Charter. The government must prove that the infringement of rights or freedoms is justified.42

IV.4 Standard of proof

IV.4.1 Neither plaintiffs nor defendants are required to provide "proof beyond reasonable doubt," the standard used in criminal prosecution. All that is required is proof on the balance of probabilities:43 that a party produce evidence to show that something is more probably the case than not.44 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. Sauve v. Canada (Chief Electoral Officer) 2002 SCC 68 at para. 18.45

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.46 The judge commented that the parties thoroughly reviewed the materials in their submissions.47 She noted that Canada had been especially and unexpectedly thorough in identifying risks associated with legalization of assisted suicide.48 While the timelines for the trial were tight, the defendant governments did not identify any evidence that they were unable to provide because of the summary trial process.49 Madam Justice Smith reviewed the entire evidentiary record, but does not refer to every affidavit or the evidence of every witness in her ruling.50

V. 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. The latter primarily concern the question of whether or not it is possible to establish safeguards that will prevent harms that might flow from legalizing assisted suicide and euthanasia.

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

Research findings show differing levels of compliance with the safeguards and protocols in permissive jurisdictions. No evidence of inordinate impact on vulnerable populations appears in the research. Finally, the research does not clearly show either a negative or a positive impact in permissive jurisdictions on the availability of palliative care or on the physician-patient relationship.

V.2.1 In Part VIII (paragraphs 359 to 747) Madam Justice Smith reviewed the evidence concerning the practice of assisted suicide and euthanasia and the effectiveness of safeguards in Oregon, Washington, Belgium, the Netherlands, Luxembourg and Switzerland.

V.2.2 With respect to compliance with safeguards, the judge found that the process in Oregon, "is working fairly well but could be improved,"51 and compliance in the Netherlands " is continually improving" but not yet ideal.52 Things are clearly less satisfactory in Belgium, where she acknowledged "low rates of reporting. . . and high rates of LAWER (life ending acts without explicit request)." However, she noted evidence that the incidence of LAWER had declined since legalization of euthanasia and assisted suicide.53

V.2.3 Concerning the effectiveness of safeguards, the judge concluded that there is no empirical evidence that legalizing assisted suicide and euthanasia "has imposed a particular risk to socially vulnerable populations" in the Netherlands and Oregon.54 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.55 She could not reach firm conclusions about Belgium.56

V.2.4 Summing up the evidence on the effectiveness of safeguards, Madam Justice Smith noted that, with respect to the Netherlands, Belgium and Oregon, "the predicted abuse and disproportionate impact on vulnerable populations has not materialized,"57 and, though the systems were not perfect, "empirical researchers and practitioners who have experience in those systems are of the view that they work well in protecting patients from abuse while allowing competent patients to choose the timing of their deaths."58

V.2.5 After reviewing the evidence of the impact of legal assisted suicide and euthanasia on palliative care59 she decided that it showed that palliative care had not been undermined by legalization, but had in some respects improved.60 However, she was reluctant to apply the findings directly to Canada61 and concluded only that, while legalizaton could affect palliative care, the effect would not necessarily be negative.62

V.2.6 Similarly, she found that the evidence indicated that if assisted suicide and euthanasia were legalized, physician-patient relationships "would not necessarily change for the worse," and that "the net effect could prove to be neutral or for the good."63

V.2.7 Madam Justice Smith succinctly summarized her findings:

Research findings show differing levels of compliance with the safeguards and protocols in permissive jurisdictions. No evidence of inordinate impact on vulnerable populations appears in the research. Finally, the research does not clearly show either a negative or a positive impact in permissive jurisdictions on the availability of palliative care or on the physician-patient relationship.64

V.3 Feasibility of safeguards: risks to patients

My review of the evidence. . . leads me to conclude that the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.

V.3.1 In Part IX 9 (paragraphs 748 to 853) she considers the evidence about the feasibility of safeguards and addresses 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 are 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."65

V.3.3 In considering the issue of voluntariness and concerns that patients might be pressured into committing suicide, she accepted the evidence of defendant witnesses Gallagher, Chochinov, Heisel and Frazee concerning the subtley of influences that can be brought to bear on patients, but also accepted the evidence of plaintiff witnesses Ganzini and Donnelly "that coercion and undue influence can be detected as part of a capacity assessment."66

V.3.4 In the view of the judge, the evidence demonstrates that the issue of informed consent presents no more difficulty in the case of assisted suicide and euthanasia than in seeking or refusing medical treatment.67 The conclusion is consistent with evidence from one of the plaintiff witnesses that "the risks and benefits of a lethal prescription are straightforward and not cognitively complex."

This risk is that the prescription might not work; the benefit is that the patient's life will end at a time of her choosing.68

V.3.5 With respect to patient ambivalence about dying, the judge concluded "that it is feasible to screen out. . . patients who are ambivalent, by assessing capacity and requiring some time to pass between the decision and its implementation."69

V.3.6 Finally, while she recognized the elderly are vulnerable to abuse and that the disabled "face prejudice and stereotyping," the judge ruled "there is no evidence that the elderly access physician-assisted dying in disproportionate numbers in permissive jurisdictions"70 and that the risks to the disabled can be "avoided through practices of careful and well-informed capacity assessments by qualified physicians who are alert to those risks."71

V.3.7 Madam Justice Smith concluded her review of the effectiveness and feasibility of safeguards as follows:

My review of the evidence. . . leads me to conclude that the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.72

VI. The legal analysis
VI.1 Finding of "discrimination"
 . . .many people continue to believe that suicide, while not blameworthy if it results from severe mental or emotional disorder, is immoral or unethical if deliberately chosen, and should always be prevented. The most significant difference between their beliefs and those of Madam Justice Smith is that her beliefs can directly shape the law, and theirs cannot.

VI.1.1 The judge's reasoning in Carter begins with the fact that neither suicide nor attempted suicide are illegal,73 and relies upon her belief that suicide (and, hence, assisted suicide) is not only legal, but can be a rational and moral act: not that it always is, but that it can be.74 This inescapably moral position is obscured by a claim of neutrality.75

VI.1.2 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 (see below.) 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. The most significant difference between their beliefs and those of Madam Justice Smith is that her beliefs can directly shape the law, and theirs cannot.

VI.1.3 Thus, it is important to recognize that the trajectory of the ruling in the Carter case was determined by the judge's beliefs about suicide: that, Rodriguez notwithstanding, there are circumstances in which it can be approved. Further: the ruling proceeds as if people who continue to hold that deliberate suicide is immoral don't exist, or that their beliefs are of no account in legal reasoning. Neither of these points invalidates the ruling; both are actually irrelevant to the issues before the Court in Carter. Both, however, are of interest within the broader context of the significance of Carter for freedom of conscience, because the ruling has implications for people other than the plaintiffs, especially those who disagree with the ruling but may be expected to implement it.

VI.1.4 Returning to the judge's reasoning, she observed that the able-bodied can (rationally and morally) commit suicide78 without assistance in order to relieve themselves of the burden of pain or suffering,79 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, a burden she graphically illustrated by reference to the evidence.80 She decided that the law, though neutral on its face, disproportionately affects disabled people,81 and thus creates a distinction based on physical disability.82 Madam Justice Smith concluded that the distinction is discriminatory because it disadvantages a particular subset of persons (the disabled)83 by perpetuating and exacerbating their disadvantages.84

VI.2 The question of justification

VI.2.1 Having decided that the law against assisted suicide violates the Charter guarantee of equality (Section 15) and is thus discriminatory, the judge asked if it could, nonetheless, be "demonstrably justified" as a "reasonable limit" to the rights and freedoms of disabled people.85

. . . it is the absolute nature of the prohibition against assisted suicide that requires justification, not the prohibition overall. In other words, the real question is whether or not the defendants have demonstrated justification for criminalizing the rendering of assistance in suicide to persons such as Gloria Taylor.86

VI.2.2 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.87

VI.3 Purpose of the law
  . . . it is not the purpose of the law to prevent suicide by the likes of Gloria Taylor, or by absolutely everyone. The law is meant to protect only those who might be pressured to commit suicide or who might do so for irrational reasons.

VI.3.1 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.88 British Columbia suggested the principle of "the sanctity of life" as fundamental,89 while the Christian Legal Fellowship put forward the "inviolability principle" - "that the intentional taking of innocent human life is always wrong."90 Similarly, the Euthanasia Prevention Coalition stated that "human life is intrinsically valuable and inviolable."91

VI.3.2 All of these principles could be applied to make the case that suicide is always wrong or at least always undesirable, and that the purpose of the law and goal of public policy is to prevent all suicides. This approach would have been entirely consistent with the origin of the law.92 It would also have been consistent with the rationale for abolishing the offence of attempted suicide; the law was changed try to prevent suicide because it was thought it was more likely to be prevented by the intervention of medical experts rather than magistrates.93

VI.3.3 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."94 None of the parties explicitly argued that the purpose of the law is to prevent all suicides, and none addressed the morality of suicide, probably because the subject is not one that can be argued effectively in an environment of moral pluralism. Note, however, that the failure to address the morality of suicide did not produce a forum cleansed of moral beliefs. It simply allowed the moral belief that suicide can be rational and moral set the parameters for argument and adjudication.

VI.3.4 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.95 The judge did not ignore these considerations,96 but subtly reminded Canada that it had insisted that she was bound to follow the Rodriguez judgement,97 and then purported to follow Rodriguez98 by rejecting the additional purposes suggested by Canada.99

VI.3.5 Consistent with her belief that suicide can be a rational and moral act, the judge concluded that the sole purpose of the law against assisted suicide is to prevent suicides by vulnerable people who, in a moment of weakness, might succumb to suggestions or pressures by others.100 In other words, it is not the purpose of the law to prevent suicide by the likes of Gloria Taylor, or by absolutely everyone. The law is meant to protect only those who might be pressured to commit suicide or who might do so for irrational reasons. The judge agreed that this was a "pressing and substantial" purpose,101 and that the means (absolute prohibition) was rationally connected to this end.102

VI.3.6 The judge's narrow construction of the purpose of the law reflected common ground among the parties to the case103 and the unchallenged presumption that suicide can be a rational and moral act. It was at the next stage of the analysis that the differences among the parties became apparent.

VI.4 Minimal impairment: the meaning of "effective"
 . . .it appears from the text of the ruling that the evidence of the defendants' witnesses could not match that of the plaintiff witnesses.

VI.4.1 Once the judge decided that the law was discriminatory, the burden of proof shifted to the defendant governments.104 It was up to them to demonstrate that nothing short of absolute prohibition could achieve the objective of protecting vulnerable people, and that there is no alternative that "less seriously infringes the Charter rights of Gloria Taylor and others in her situation."105

VI.4.2 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."106

VI.4.3 The defendants could prove this by proving that safeguards are ineffective in jurisdictions where assisted suicide and euthanasia are legal, or that such safeguards are not feasible in Canada, or, at the very least, that the evidence is 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.4.4 There was another problem. How does one measure effectiveness?
[The defendant] witnesses produced evidence of risk, and the judge was willing to accept that evidence,116 but the problem was judicially defined as one of managing or reducing risk, not eliminating it altogether.

VI.4.5 The defendants' assertion that only blanket prohibition could be effective rested on the premise that even one 'wrongful' death is too many:107 that safeguards can only be considered effective if they absolutely eliminate any possibility of error. By way of analogy, Canada asserted that capital punishment was abolished in Canada because of concern about the possibility of error.108 This is at least doubtful as a matter of history109 and was not supported by the submissions of British Columbia110 or the Supreme Court of Canada in the Rodriguez decision.111

VI.4.6 Madam Justice Smith rejected the analogy.112 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."113 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 can now occur as a result of accepted but unregulated end-of-life practices like refusing or withdrawing treatment.114 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.115

VI.4.7 Combined with the narrow construction of the purpose of the law, this development was fatal to the defendants' case. Their witnesses produced evidence of risk, and the judge was willing to accept that evidence,116 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. 117

VI.4.8 Thus, Madam Justice Smith ruled that the defendant governments had failed to prove that the protection of vulnerable persons could not be achieved by means less drastic than absolute prohibition.

Permission for physician-assisted death for grievously ill and irremediably suffering people who are competent, fully informed, non-ambivalent, and free from coercion or duress, with stringent and well-enforced safeguards, could achieve that objective in a real and substantial way.118

VI.5 Proportionality
 . . ."the salutary effects of the legislation can be preserved by leaving an almost-absolute prohibition in effect, and permitting only stringently-limited exceptions."

VI.5.1 Granted a finding of more than minimal impairment, the next stage in the analysis requires the Court to consider the possibility that the benefits of the law are, nonetheless, worth the limitations imposed.119 At this stage the judge considered Canada's claims (rejected with respect to the purpose of the law) that absolute prohibition of assisted suicide provides benefits that outweigh 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.120

VI.5.2 Returning to her review of the evidence, Madam Justice Smith held that absolute prohibition of assisted suicide "has the advantage of simplicity and clarity,"121 but that the evidence fails to show that it clearly benefits patients, physicians, or palliative care.122 She speculated that there may be some benefit to regulating a practice that occurs from time to time despite the prohibition.123 But she was quite clear that, in her view, absolute prohibition of assisted suicide imposes a disproportionate burden on the disabled.124 The alleged benefits of prohibition, she said, "are experienced by unknown persons who may be protected" from a variety of ills, while the burdens "are experienced by persons who are in the position of Sue Rodriguez or Gloria Taylor, and are considerable."125

VI.5.3 Ultimately, she agreed that absolute prohibition probably has salutary effects in comparison to no prohibition,126 and admitted that "suicide and attempts at suicide are serious public health problems."127 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."128

VI.6 Life, liberty and security of the person
. . .the prohibition of assisted suicide "has the effect of shortening the lives of persons who fear that they will become unable to commit suicide later, and therefore take their lives at an earlier date than would otherwise be necessary."

VI.6.1 The Section 7 claims of violations of liberty and security of the person in Carter differed from those in Rodriguez because the plaintiffs included not only Gloria Taylor, who was seeking assisted suicide or therapeutic homicide for herself, but Hollis Johnson and Lee Carter, who had arguably assisted in the suicide of Lee Carter's mother, and were thus at least theoretically liable to prosecution and imprisonment.129

VI.6.2 There was no dispute that the law against assisted suicide engaged the liberty interests of Johnson and Carter.130 After considering objections made by Canada,131 Madam Justice Smith ruled that the law deprived Gloria Taylor of liberty and security of the person by interfering with her personal autonomy and control over her bodily integrity.132

VI.6.3 Turning to the guarantee of the right to life, Canada argued "that the right to life does not include the right to choose death,"133 insisting that court rulings have "consistently recognized that the right to life protects individuals from death or the risk of death" and do not confer "a right to die."134

VI.6.4 Madam Justice Smith agreed "that the right to life is engaged only when there is a threat of death,"135 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."136

VI.6.5 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.6.6 Concerning people like Gloria Taylor, the judge asserted that:

• they will have shorter lives if they choose to kill themselves sooner rather than take the chance that they will be unable to have assistance later;137

• they are 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."138 Particularly in light of evidence before the court of physician opposition to assisted suicide, it is remarkable that the judge made the assumption that their physicians would always be supportive.

• the physically disabled are denied the autonomy of the able-bodied, and thus "deprived of a measure of self-worth."139

• palliative care may be unavailable or unacceptable, so that they may continue to experience pain and suffering.140

• they suffer stress because they are unable to have the comfort of knowing that assisted suicide or euthanasia will be available if they so choose.141

VI.6.7 The possibility that a law is arbitrary is the first point to consider in determining whether or not such deprivations are in accordance with the principles of fundamental justice. Since the Supreme Court had decided in Rodriguez that the law is not arbitrary, the judge accepted that ruling.142

VI.6.8 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."143 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

• does not demonstrate that physicians are insufficiently skilled at assessing patients;144

• does not demonstrate that, where assisted suicide and therapeutic homicde are legal, that patients are abused, that physicians become careless or callous, or that a "slippery slope" exists;145

• does not demonstrate that assisted suicide and euthanasia are inconsistent with medical ethics;146

• supports 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."147

VI.6.9 Finally, Madam Justice Smith ruled that the adverse effects of the absolute prohibition of assisted suicide "is 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."148

VII. The remedy
VII.1 Declaration of invalidity

VII.1.1 In consequence of her findings and reasoning, Madam Justice Smith declared that the "impugned provisions" of the law unjustifiably infringed Sections 7 and 15 of the Charter of Rights and are of no force and effect to the extent that they prevent physicians from providing assisted suicide and euthanasia to a certain class of patients. Her description of the circumstances and the class of patients effectively sets out her terms for the legalization of the procedures.149

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

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

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

d) The patient must be

i) an adult,

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

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

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

i) that is without remedy acceptable to the patient,

ii) that causes enduring physical or psychological suffer that is intolerable to the patient and that cannot be alleviated by any medical treatment acceptable to the patient;

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

VII.2 "Constitutional exemption"
 That Madam Justice Smith should authorize a physician to falsify a death certificate seems markedly inconsistent with her repeated insistence upon the importance of "stringent limits that are scrupulously monitored and enforced."

VII.2.1 The judge suspended the application of her declaration for a year to give the government time to decide how to respond.150 In the meantime, she granted a "constitutional exemption" to Gloria Taylor and her physician so that she can seek assisted suicide or euthanasia while the ruling has been suspended.

VII.2.2 The conditions and procedure set by the court provide some insight into the process of legal assisted suicide and therapeutic homicide envisaged by the judge.

VII.2.3 The conditions:151

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

b) Her attending physician must attest (the context throughout suggests that the attestation must be written) that she is "terminally ill and near death, and there is no hope of recovering." The references to terminal illness and nearness to death depart from the terms of the declaration of invalidity.

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

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

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

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

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

h) Unless Ms. Taylor is physically incapable, "the mechanism for the physician-assisted death shall be one that involves her own unassisted act and not that of any other person."

VII.2.4 The procedure:152

a) Ms. Taylor must apply to the British Columbia Supreme Court and prove that the conditions set out above have been met. The Court, if satisfied, will issue an order authorizing a physician to "legally provide Ms. Taylor with a physician-assisted death at the time of her choosing" as long as, at that time, she is "suffering from enduring and serious physical or psychological distress that is intolerable to her and that cannot be alleviated by any medical or other treatment acceptable to her." She must also be competent and "voluntarily seeking a physician-assisted death."

VII.2.5 The final element of the order is of particular interest. Madam Justice Smith ruled that the court should also authorize the physician who assists the suicide or provides euthanasia to "complete her death certificate indicating death from her underlying illness as the cause of death."153

VII.2.6 That Madam Justice Smith should authorize a physician to falsify a death certificate seems markedly inconsistent with her repeated insistence upon the importance of "stringent limits that are scrupulously monitored and enforced."154 The rationale for this appears to have been articulated by one of the plaintiffs witnesses:

Dr. Nancy Crumpacker, a retired oncologist . . . says that it is the common, if not invariable, practice of physicians who fill out the death certificates of persons who hasten their deaths under the ODDA155 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.156

VII.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) is contrary to death reporting and classification practices in British Columbia157 and internationally158 and will produce confusion, not transparency.

VII.2.8 It is remarkable that, having concluded that assisted suicide and therapeutic homicide are morally and ethically justifiable in the circumstances set out in the judgement, Madam Justice Smith should feel it necessary to authorize physicians to conceal the procedures when certifying such deaths.

VIII. Summary

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

VIII.2 Since, on this understanding, the vulnerable are not to be protected against something that is always wrong, but something that they might, in some circumstances, legitimately pursue, it was natural to search for a means to permit those legitimately seeking assisted suicide to obtain the service.

VIII.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.

VIII.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.

VIII.5 The standard chosen was the current regime of end-of-life practices, since the outcome of a mistake in this regime ('death before one's time') is the same as the outcome of a mistake in regulating assisted suicide.

VIII.6 The argument advanced was, in effect, that one cannot reasonably demand a higher standard of safety in the delivery of assisted suicide than in the delivery of palliative care because the results of a mistake in either case are the same.

VIII.7 Patient safety in end-of-life care is currently 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 are considered sufficient for the purposes of end-of-life decisions in withholding, withdrawing or refusing treatment, it was decided that they should be sufficient for the regulation of assisted suicide for competent adults.

VIII.8 The burden of proof was on the defendant governments to prove that this could not be done. The text of the ruling indicates that they provided evidence of risk, but failed to prove that safeguards cannot be effective.

IX. Postscript
. . .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.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.159

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 solely because vulnerable people might be exploited if it were: that no regulatory process could adequately protect them. But Gloria Taylor could not be plausibly described as a vulnerable and exploited person, so they could not explain why, in her case, assisted suicide should not be permitted, And if they could think of no reason to deny it to her, upon what basis would they deny it to others?

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 would be abruptly dismissed, either with contempt, or with 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, as noted above, keeping silent about morality, philosophy or religion does not produce a morally neutral judicial forum or public square. It simply allows dominant moral or philosophical beliefs to set the parameters for argument and adjudication.

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.

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