Legalizing therapeutic homicide and assisted suicide: A tour of Carter v. Canada

APPENDIX "B"

Carter Part VII: Judicial Dicta on Ethics

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B1.    A note of caution

B1.1    Part VII of the judgement illustrates the difference between the role of a scholar and the role of a judge: between an investigative and deliberative process that can be followed by parliamentary subcommittees or royal commissions and the process followed in a trial conducted on adversarial principles. As the Christian Legal Fellowship observed, a trial judge "does not have the benefit of the wide-ranging consultations that are available to government."261

B1.2   A judge is not a scholar who has the freedom and the obligation to go beyond evidence that is ready to hand in order to identify all issues raised by a problem and locate all evidence that may be relevant to resolving it. A judge is largely confined to the issues as defined by the pleadings and to the evidence presented by the parties. One of the strengths of judicial office is this demanding specificity that can bring a bright light to bear on dark doings, or bring into focus something not readily seen without the assistance of a judge's lens, be it microscopic or telescopic.

B1.3    However, this restricted focus and dependence on the evidence "as presented" becomes a handicap when a wide angle lens is needed and the evidence "as presented" is selected, shaped and limited by the interests and practical judgement of the parties in conflict. Part VII of the judgement, in which the judge tries to make sense of the evidence "as presented," seems to reflect this limitation.

B2.    The question addressed in Part VII

B2.1    In Part VII (pargraphs 161 to 358), Justice Smith proposed to address the question of whether or not it would ever be ethical - not legal - for a physician to provide assisted suicide or euthanasia at the request of a competent, informed patient.262  Unfortunately, she did not confine herself to this question, but seems to have wandered through the evidence, perhaps attempting to synthesize disparate and incomplete evidentiary materials and arguments provided by the parties in conflict.  Her explanation of the purpose of this exercise was muddled.

B2.2    The judge asserted that the question before her was constitutional, not legal.263  This implied that a challenged to the constitutionality of the law against assisted suicide was not a legal question, which seems at least a very peculiar view.

B2.3    In the same breath, the judge said that the question before her was not ethical.264  If the question before her was not ethical, one may reasonably ask why she embarked upon a lengthy discussion of ethics.

B2.4    Observing that the realms of ethics, law and constitutionality "tend to converge even though they do not wholly coincide,"265 the judge explained that the law and medical practice are shaped by ethical principles.266 She later noted that legal and constitutional principles are derived from and shaped by societal values.267  The explanation was not germane in the circumstances of the case before her, in which ethical principles and societal values were either in dispute or in conflict: hence her references to "the ethical debate."

B2.5    In any case, the judge stated that she intended to "review the evidence that the parties provided regarding the ethical debate and end-of-life medical practices . . . in order to create a record for higher courts and because this body of evidence and law has some relevance to other issues that are necessary for me to address."268

B2.6    To this she added, with apparently less assurance, three further reasons that indicated, in her words, that "the ethical debate may bear on the issues in this case." (Emphasis added)269

B2.7    The first was that, since the plaintiffs were seeking physician-assisted suicide and euthanasia, it was important to determine whether or not at least some physicians believed it would be ethical to provide the services.270 While this was a reasonable question, the ensuing review of "the ethical debate" was not required to answer it, since it was obvious from the plaintiffs’ notice of claim that some physicians held that opinion.

B2.8    The second reason offered was that the plaintiffs claimed that there was no ethical distinction between permissible forms of end of life care and assisted suicide/euthanasia, and no ethical distinction between suicide and assisted suicide.271 The judge having previously declared that the question before her was not ethical (B2.3) and that the ethics of suicide were not at issue (VI.2.3), these claims (and her review of the ethical debate) would seem irrelevant.

B2.9    Finally, the judge referred to plaintiffs’ claim that the law was invalid if its purpose was "to uphold a particular religious conception of morality." However, the ruling on this point identified an entirely different purpose, and, in arriving at that conclusion, made no reference to this claim.272 The review of the ethical debate for this purpose would seem to have been superfluous.

B2.10    Nonetheless, "to create a record for the higher courts," because the ethical debate had "some relevance" to the points she had to address, and because of the possibility that it could bear on the issues, Madame Justice Smith deemed it "worthwhile to review the parameters of the ethical debate."274

B2.11   It is instructive to compare her explanation of the purpose of Part VII to her explanation of the purpose of Part VIII, where she considered evidence from other jurisdictions on the efficacy of safeguards:

In this section, I will summarize, and make findings of fact with regard to the extensive evidence that has been tendered with respect to permissive jurisdictions and their safeguards."275

After outlining how she would approach the subject, she added, "I will then return to the practical slippery slope questions and set out my conclusions on those questions, based on the evidence."276

B2.12    She promised "findings of fact" and "conclusions" in relation to Part VIII, but not Part VII.

B3.  Plaintiffs' claim shapes and limits the analysis

B3.1    It seems that the judge's opinion that "the ethics of physician-assisted death are relevant to, although certainly not determinative of, the assessment of the constitutional issues in this case"277 originated in the plaintiffs' claim, which was specifically for physician-assisted suicide and euthanasia.

B3.2    However, the law forbade anyone - not just physicians - from assisting in suicide or committing consensual homicide. If there was an ethical question central to constitutional issues, it was the ethics of assisted suicide and consensual homicide by anyone - not just physicians. Of course, to begin here would have complicated the case enormously, since it would have been difficult to avoid questions about how suicide and homicide are consistent with the high value the law and society assign to human life, be it described in terms like "the sanctity of life" or "the inviolability principle" or "fundamental value."

B3.3    The plaintiffs chose to begin with physician-assisted suicide and euthanasia,278 thus avoiding these logically prior ethical questions, and Justice Smith did the same when she expressly accepted this framework for her analysis.279 Thus, Part VII included one strand of discussion that addressed a central question identified by the judge: "whether or not it is ethical for physicians to provide such assistance." 280

B4.    Ethics: which one?

B4.1    Justice Smith did not acknowledge the first and most obvious difficulty that has to be faced in answering that question: identifying the ethical or moral standard to be applied. Since physicians were providing assisted suicide and therapeutic homicide in Belgium and the Netherlands, it would seem that either they are acting unethically, or that Canadian physicians are acting unethically by refusing to do so. Alternatively, a moral or ethical relativist would likely assert that medical ethics are cultural or social constructs with no transcendent significance, so that we should expect that different countries are likely to have different ethics.

B4.2    Here, the law itself was of no assistance. The judge recognizes that what is ethical or moral may not be legal, and what is legal may not be moral or ethical,281 a proposition with which St Augustine, St. Thomas Aquinas and Martin Luther King Jr. (among others) would agree.282 But these men accepted that proposition because they recognized a transcendent or objective standard to which human law ought to conform, while Carter was presented, argued and decided as if such a standard did not exist or is irrelevant.

B4.3    Instead, in Part VII, the judge tried to establish a common standard by searching for ethical consensus. This is not surprising, since seeking common ground is a legitimate and important conflict resolution strategy, and a civil trial can be understood as a formal conflict resolution process. Thus, the judge frequently referred to what she identified as common ground, points of agreement, and what was "accepted."283

B4.4    However, the search for common ground in Carter was subject to the limitations noted in B1.2 and B1.3. Thus, the judge confined herself to the sources recommended to her by the parties, and her review of these sources was largely circumscribed by their submissions and arguments.

B5.    Medical ethics

B5.1    Ethics and practitioners

B5.1.1    In her search for consensus in medical ethics, the sources relied upon by the judge included the opinions of physicians, medical associations and ethicists and a review of contemporaneous end-of-life practices.

B5.1.2    The plaintiffs produced 13 Canadian medical practitioners who considered euthanasia or assisted suicide to be ethically acceptable in some circumstances284 and six physicians from other countries who were of the same opinion.285 The defendants provided evidence from six Canadian physicians who offered opposing views,286 three of whom proved to be somewhat ambivalent.287

B5.1.3    From all of this, the judge concluded that "experienced and reputable Canadian physicians" who were "unchallenged with respect to their standing in the medical community or their understanding of and respect for medical ethics" were willing to provide assisted suicide and euthanasia.288

B5.1.4    But the willingness of reputable physicians to provide or participate in procedures was hardly proof that the procedures were ethical. For example, in 1996 Alberta Eugenics Board physicians were found to have engaged in “unlawful, offensive and outrageous” medical procedures, and the court excoriated a respected Canadian geneticist for encouraging them to use Down Syndrome children as “medical guinea pigs.”289

B5.1.5    Some physicians are willing to have sex with consenting patients, but Canadian professional and regulatory authorities are generally clear that it is always unethical for a physician to do so, even though it is not against the law.290 This is also the case in the Netherlands, where physicians are forbidden to have sex with consenting patients,291 though they can kill consenting patients.292

B5.1.6    Certainly, these comparisons would have raised interesting ethical questions about different understandings of physician-patient relationships, power imbalances and consent, had any of the parties chosen to bring them forward.293

B5.2    Ethics and the positions of medical associations

B5.2.1    It appears that neither defendants nor plaintiffs provided an adequate survey of the policies of medical associations or physician regulators on assisted suicide and euthanasia, but offered a sampling of policies from different organizations. The selection, such as it was, illustrated only that there were differing views, while the judge acknowledged that the "official" position of an association on assisted suicide and euthanasia did not necessarily represent the views of all of the members of a profession.294

B5.3    Ethics and the opinions of ethicists

B5.3.1    Predictably, the ethicists called by the plaintiffs differed from those called by the defendants about the ethics of physician-assisted suicide and euthanasia.295

B5.3.2    For the plaintiffs, Professor Wayne Sumner asserted that, like contemporaneous forms of end-of-life and palliative care, euthanasia and assisted suicide could be ethically justified by the informed and voluntary choice of a competent patient.296 Dr. Marcia Angell appealed to the principle of patient autonomy in support of the procedures,297 which also appears to have been the basis for Dr. Ross Upshur’s assertion that euthanasia and assisted suicide could be provided on the basis of a free and informed request by a competent person for whom life is "not worth living."298

B5.3.3    Plaintiff witness Professor Margaret Battin agreed that the principle of autonomy was fundamental, but insisted that assisted suicide and euthanasia could not be justified solely by the informed choice of a patient because the services were being provided by physicians. She argued that justification required the additional principle of "mercy."

The nature of the patient’s suffering and why it is intolerable to the patient must also be understood by the physician, who then is obliged to try to respond as a matter of mercy and in fulfilment of his or her commitment not to abandon the dying patient. Thus autonomy and mercy go hand in hand: for the physician to offer assistance in dying, it must be the patient’s choice and it must also be done to help the patient avoid suffering that is either intolerable or about to be so.299

B5.3.4    This strongly implied that physicians were ethically obliged to provide assisted suicide and euthanasia in response to pain or suffering, and that failure to kill the patient or assist with suicide amounted to patient abandonment. The claim was and is absolutely rejected by those opposed to the procedures, but the judge made no comment about it.

B5.3.5    For the defendant governments, witness Professor Koch argued that justifications based on autonomy were overly simplistic and misplaced, pointing out that euthanasia/assisted suicide advocates were seeking not just autonomy, but the communal and medical support for the procedures. Against such claims he appealed to the Hippocratic Oath and rejected what he described as a consumer model of medical practice based soley on consumer choice.300

B5.3.6    Defendant witness Prof. John Keown asserted that "any intentional taking of life is unethical and should not be permitted," a statement that would presumably include suicide, though this point was not pursued. He insisted that the inviolability of human life was at the heart of both law and medical practice. He opposed physician-assisted suicide and euthanasia because of his belief in the sanctity of life, and because he believed that the practices could not be controlled if legalized.301

B5.3.7    The evidence of defendant witness Dr. Eugene Bereza was decidedly ambivalent. He allowed that “there may be morally persuasive arguments for physician-assisted death in some cases,” though he was against a change in the law because of the risk “of unjustifiable death to vulnerable individuals.”302

B5.4    Ethics and contemporaneous end-of-life practices

B5.4.1    Ethicists and other witnesses also discussed contemporaneous end-of-life practices. For the plaintiffs,  Professor Sumner denied that there was any "ethical bright line" by which to distinguish euthanasia/assisted suicide from legal and accepted end-of-life practices.303 Defendant witness Dr. Eugene Bereza was not sure if it was possible in all cases to clearly distinguish between withholding or withdrawing life-sustaining treatment and assisted suicide or euthanasia.304

B5.4.2    Plaintiff witness Dr. Gerrit Kimsma of the Netherlands argued that assisted suicide and euthanasia are consistent with the goals of medicine and already occurring in fact, though "under a veil of confusion, ambiguity and lack of truth/disclosure."305

B5.4.3    On this point, however, the judge ultimately found that the law had deterred all but a very few Canadian physicians from providing assisted suicide and euthanasia.306 The evidence, she said, suggested that Canadian physicians provide assisted suicide or euthanasia in only "a very small number of instances." 307

B5.4.4    The withdrawal of life support or treatment was of particular interest to Justice Smith because 90% of patients died "following the withdrawal of some form of life support, most commonly the withdrawal of medical ventilation, dialysis or inotrope medications."308

B5.4.5    With respect to end-of-life practices generally, Justice Smith identified the pivotal principle of informed consent, which (she said) rested on the foundational concept of individual autonomy. Medical procedures could not be undertaken or sustained without the continuing informed consent of a competent patient, who was entitled to refuse treatment even if death would result. In the case of non-competent patients whose wishes were not known, "medical decisions will be made in the patient's best interests." Patients could make their wishes known by means of advance directives, and such directives had to be respected if the patient were incapacitated. Alternatively, decisions about withdrawal or refusal of treatment could be made by legally recognized third parties.309 Justice Smith held that the law concerning the right of physicians to withdraw or refuse treatment despite the objections of third-party decision-makers was uncertain.310

B5.4.6    However, much that was necessary to understand the ethical issues and controversies associated with end-of-life practices was absent from Part VII, particularly with reference to palliative sedation (See Appendix "C"). Thus, while the judge's explanation of the law of informed consent was satisfactory, as was her explanation of the law concerning withdrawal and refusal of treatment,311 her discussion of the ethics of end-of-life decision-making was seriously deficient.

B5.4.7    The deficiency was especially problematic because Justice Smith also attempted to answer another question: whether or not contemporaneous end of life practices were ethically distinguishable from physician-assisted suicide and euthanasia (See B8.6).312 One of the plaintiffs' central claims was that they were not.313

B6.    Ethics of society

B6.1    A second strand of discussion in Part VII, occasionally spliced into the discussion of medical ethics, was whether or not an ethical or moral consensus existed outside the medical profession on the subject of assisted suicide and euthanasia. This, too, originated in the plaintiffs' claim, since they asserted that the current law was invalid if its purpose was "to uphold a particular religious conception of morality" that was unsupported by social consensus in Canada.314

B6.2    Ethics and public opinion

B6.2.1    The reliability of public opinion polls as an indicator of ethical consensus was disputed.315 British Columbia urged that consensus should be recognized in a plurality of sources: "in the refusal of successive governments and Parliaments to legalize assisted dying," in the fact that "the overwhelming majority of Western democracies" forbid assisted suicide and euthanasia, in a comprehensive report from the Canadian Senate, and in laws and judicial rulings that were not identified in the judgement.316

B6.2.2    The judge ultimately cited an opinion poll showing a majority of Canadians were "supportive of physician-assisted death in some circumstances."317 This was an inaccurate description of the poll, which referred to "euthanasia," not "physician-assisted death." Moreover, the poll posed the question without reference to circumstances and without defining "euthanasia."318

B6.2.3    A poll of this type was of no value in assessing the ethical content or importance of the opinions of respondents. While the judge noted that public opinion polls (in general) "provide some indication as to societal values overall,"319 she failed to explain how this particular poll could have reasonably contributed to the ethical evaluation she attempted in Part VII.

B6.3     Ethics and public committees

B6.3.1    The judge noted that the 1995 Special Senate Committee Report was the result of a 14 month enquiry that heard evidence from witnesses across the country and received hundreds of letters and briefs, but adds that the report was not unanimous on the subject of assisted suicide and euthanasia.320

B6.3.2    She appears to have given equal weight to subsequent reports produced by committees of the Royal Society of Canada (RSC) and the Quebec National Assembly (QNA), both of which unanimously recommended legalization of assisted suicide and euthanasia.321

B6.3.3    Quite apart from concerns that might be raised concerning the comprehensiveness of the reports, the reference to the RSC and QNA reports in the ruling was questionable for three reasons.

First: five of the six authors of the RSC report favoured at least voluntary euthanasia before joining the RSC panel,322 and the report was alleged to present a biased (largely legal) argument.323

Second: three authors of the RSC report were plaintiff witnesses at trial, and one helped to instruct plaintiff witnesses.324

Third: the recommendations of the QNA committee report were reported to have contradicted the majority of submissions received by the committee.325

B6.3.4    However, Justice Smith did not treat the reports as evidence of consensus that assisted suicide and euthanasia were ethical. Instead, she relied upon them only to demonstrate a lack of social consensus. She contrasted the majority and minority Senate Committee positions,326 and the recommendations of the RSC and QNA reports with the adverse response of Parliament in 2010.327

B6.4    Ethics and prosecution policies

B6.4.1    In considering Crown Counsel policy governing prosecution of assisted suicide in British Columbia,328 Justice Smith noted that the policy appeared to recognize that the public interest may not always require prosecution of assisted suicide or euthanasia, even if there were a strong likelihood of conviction. She found this conceivably supportive of legalization of the procedures.329 This was a peculiar conclusion. Crown Counsel may decide not to prosecute offenders for a variety of crimes for public interest reasons, despite the likelihood of conviction; for example: the Crown may decline to prosecute a dying offender for robbing a bank.  However, such an exercise of discretion would not be cited as a reason to abolish the crime of robbery.

B6.4.2    More significant, the judge ignored the prosecution policy of the United Kingdom, which was also part of the evidentiary record330 and directly relevant to the subjects she considered in Part VII. According to the English policy, if there were sufficient evidence to support a charge, there was more reason to prosecute physicians,healthcare workers and others who assisted in the suicide of someone in their care than in prosecuting those who were not in positions of authority.331 Since Justice Smith emphasized that she had reviewed the entire evidentiary record (see IV.5), her silence concerning this document seems indicative of a personal preference for an outcome favourable to legalization of physician-assisted suicide.

B7.    Summary of the ethical debate

B7.1    Justice Smith provided succinct summaries of arguments for and against legalizing assisted suicide and euthanasia before drawing conclusions about the ethical debate.332

B7.2    She correctly noted agreement that palliative care is not always effective, and, more commonly, often not accessible.333

B7.3    She also claimed that there is no disagreement about the facts related in Part VII concerning "existing clinical end-of-life practices and the understood legal and ethical justification for them."334 Given her incomplete treatment of the subject, assertion was at least a gross oversimplification, if not simply inaccurate (See Appendix "C").

B7.4    The judge asserted that there was "little dispute" that principles of autonomy, compassion and non-abandonment "play a central role in the formation of medical ethics" and that the principle "do no harm" was of continuing importance for physicians."335 This was correct, but insufficient.

B7.5    In the first place, this comment implied that "medical ethics" was a monolithic entity; it suggests that the judge was unaware that there were different traditions of medical ethics that were not always in agreement on all points.

B7.6    Moreover, autonomy, compassion, non-abandonment and non-maleficence were not the only principles that had shaped medical ethics, and there were ongoing disputes about the application of these principles. For example: the principle of non-abandonment was generally accepted, but that it could be applied to compel an objecting physician to facilitate assisted suicide (as implied by Professor Battin: B5.3.3)  would have been sharply contested. The judge's failure to appreciate this was illustrated by her casual dismissal of references to conscientious objection by physicians in the evidence and in submissions.336

B7.7    Finally, Justice Smith acknowledged (without explaining) controversies associated with palliative sedation and the withdrawal of food and fluids from patients unable to give informed consent, but deemed them irrelevant to the claims made by the plaintiffs.337

B8.     "Conclusions about the ethical debate"

B8.1    Recall that Justice Smith promised "findings of fact" and "conclusions" in relation to Part VIII, but not Part VII (B2.12). This is reflected in her opening paragraph under the heading, “Conclusions about the Ethical Debate.” Justice Smith there stated that she would “attempt to draw some conclusions about the ethics of physician-assisted death”(Emphasis added.). 338

B8.2    Consistent with this, a difference in language pervades Part VII and Part VIII that suggests statements about ethics in Part VII should not be considered on par with findings in Part VIII.

Part VII (Ethics):

[335] The preponderance of the evidence from ethicists is . . .

[335] I find the arguments . . . persuasive.

[338] . . . a bright-line ethical distinction is elusive.

[339] I also find persuasive the arguments . . . I agree that . . . It is unclear, therefore. . .

[343] The evidence shows that thoughtful and well-motivated people can and have come to different conclusions . . .

[344] Their evidence shows that . . .

[347] . . . provide some indication as to . . .

[348] As I see it, the divergence is with respect to. . .

[350] . . . I think that the real difference . . . Rather, the difference . . .

[357] . . . there appears to be relatively strong societal consensus about . . .

[358] . . . weighing all of the evidence, I do not find that there is a clear societal consensus either way . . . However, there is a strong consensus that if . . .

Part VIII (Efficacy of safeguards):

[647] What conclusions can be reached . . .? . . . The data do not permit firm conclusions about . . .

[648] Having said that, I am able to reach some conclusions . . .

[652] I accept that . . . I also found . . . and I accept it.

[656] The evidence supports the conclusion that . . .

[665] . . . I find that . . .

[667] I find that the empirical evidence . . . does not support . . .The evidence does support. . .

[668] No conclusion can be drawn from that study with respect to. . .

[671] It is impossible to know from statistical evidence . . . However, the evidence . . . does not support the conclusion that . . .

[672] . . . it is difficult to reach any firm conclusion.

[678] . . . I do view that as a significant difference . . .

[680] The evidence suggests ...There is no evidence suggesting . . .

[682] Overall, the evidence permits the following conclusions . . .

[736] In summary, having reviewed the evidence and the submissions on this point, I conclude that . . . I find that the evidence establishes that . . .

[737] I will review. . . and. . . before setting out my conclusions.

[746] My review of the evidence leads me to conclude . . .

798] Weighing the evidence as a whole, I conclude that . . .

[814] I accept Professor Werth’s evidence that . . .

815] Although I accept the evidence of . . . I accept the evidence of . . .

[831] The evidence as to informed consent permits me to conclude that . . .

[837] I agree with the evidence of the plaintiffs’ experts that . . .

[843] The evidence . . . leads me to the conclusion that . . .

[847] I accept that . . . and that . . .

[852] . . . there is no evidence that . . .

[853] I accept that . . .and that . . . I am not persuaded that . . .

[854] This review of the evidence permits no conclusion other than . . .

[883] My review of the evidence . . . leads me to conclude that . . .

B8.3    Turning to particulars, recall that, when introducing Part VII, Justice Smith identified the purported focus of Part VII by stating the question she proposed to address: “Would it ever be ethical for a physician to provide assisted suicide or euthanasia at the request of a competent, informed patient?”(B2.1)

B8.4    In her "conclusions" the judge ignored the focal question. Instead, she substituted four different questions under three headings (one including two questions).

B8.5    Would Canadian physicians be willing . . . ?

B8.5.1    The exploration of the willingness of physicians to provide assisted suicide or euthanasia revealed only what ought to have been obvious from the pleadings: that some were willing, others not. The judge's conclusion that some "experienced and reputable physicians" would be willing to do so resolved nothing with respect to the ethics of the practices.

B8.6    Does current medical practice with respect to end-of-life care make distinctions that are ethically defensible and is the distiction between suicide and assisted suicide ethically defensible ?

B8.6.1    Much of this section of the ruling concerned peripheral legal issues339 and a re-statement of the ethical arguments of the plaintiffs and defendants.340

B8.6.2    The subject of intention in ethical decision-making was introduced,341 but the judge did not pursue it because, in her view, the focus of the Supreme Court of Canada's discussion of intention in Rodriguez was law, not ethics.342

B8.6.3    This was, arguably, a misapplication of Rodriguez, in which the majority held that "distinctions based upon intent are important, and in fact form the basis of our criminal law." (Emphasis added.)343 The distinctions in question were philosophical or ethical distinctions and thus relevant to Justice Smith’s question about ethical distinctions in end-of-life care.

B8.6.4    In any case, in Part VII, Justice Smith offered the following summary of her study:

The evidence shows that within the medical and bioethical community the question still remains open whether an ethical distinction is maintainable between withholding or withdrawing life-sustaining treatment and palliative sedation on the one hand, and physician-assisted death on the other.344

This was consistent with the summary with which she introduced the ruling, in which she stated that "currently accepted practices bear similarities to physician-assisted death, but opinions differ as to whether they are ethically on a different footing."345

B8.6.5   Immediately after declaring the question still open, however, she claimed that "[t]he preponderance of the evidence from ethicists is that there is no ethical distinction between physician-assisted death and other end-of-life practices whose outcome is highly likely to be death," adding that shefound the arguments for this view "persuasive."346 She noted that a number of defendant and plaintiff witnesses were doubtful about the distinction,347 and that she found it difficult to make an ethical distinction in individual cases, "whether based on a distinction between foreseeing and intending, on a distinction between acts and omissions, or on other grounds."348

B8.6.6    However, on the judge’s own account, the evidence from "the medical and bioethical community" consisted of a sampling of conflicting ethical opinions provided by parties to a contentious suit, and the expression of doubts and difficulties by some of the witnesses. The evidence actually demonstrated that there was no consensus: that ethicists were divided, even though "a number of respected ethicists and practitioners" favoured the position she found "persuasive."349 In short, the evidence, such as it was, actually could not answer the question the judge posed. (B8.6).

B8.6.7    The judge’s reference to a "preponderance of evidence" involved the misapplication of an evidentiary rule developed for other purposes. The "preponderance of evidence" or "balance of probabilities" rule expresses the judicial standard of proof in civil cases, but it pertains to findings of contested facts, not to the evaluation of contested ethical beliefs. A judge cannot properly make a finding of fact to the effect that ethical position A is correct and ethical position B is not: that, for example, capital punishment is ethical, and those who think otherwise are mistaken.

B8.6.8    Further, the binary system of reasoning and rules about standards and burdens of proof used by our courts is sufficient for the purposes of a common law civil proceeding,350 but fall short of what is normative in other disciplines. For example, "more likely than not" or 51% probability is sufficient to prove facts required for judicial decision-making in civil litigation,351 but not for building bridges or forming some medical opinions.352

B8.6.9    Nonetheless, Justice Smith said that she had been persuaded that the intention of the actor is of no ethical consequence, and that there is no ethical difference between lethally injecting a willing patient and withdrawing treatment to allow a patient to die of natural causes. Similarly, she was persuaded either that there was no ethical distinction between suicide and assisted suicide in the circumstances contemplated by the plaintiffs’ application.353

B8.6.10    While this doubtless expressed her personal opinions, for the reasons noted above she could not have made such findings of fact based on the evidence. This likely explains why she stated that she was persuaded by arguments, not by evidence.354

B8.7    Does the law attempt to uphold a conception of morality inconsistent with the consensus in Canadian society?

B8.7.1    Justice Smith asserted that there appeared to be a "strong consensus that currently legal end-of-life practices are ethical."355 While this conclusion was questionable in some respects (See Appendix "C"), and the judge commented on it in her summary of the ruling,356 it did not enter into the reasoning offered to support her decision to strike down the law.357

B8.7.2    The judge believed that consensus about end-of-life practices was ultimately based on the "value of individual autonomy," but this was a hazardous oversimplification. Personal autonomy is arguably the most highly prized legal principle in Canada, and in dominant theories of bioethics it is frequently the value that trumps all others. However, other ethical traditions give priority to other principles, like the sanctity of life or human dignity.358 Practitioners from these traditions may share in a consensus about a particular end-of-life practice, but their agreement may not be based on the concept of autonomy.

B8.7.3    In attempting to identify the key difference of opinion that frustrates ethical consensus, Justice Smith concluded that there was no difference of opinion about the value of human life. "[N]o one questions that the preservations of human life has a very high value in our society," she writes. "Rather, the difference of opinion is about whether the preservation of human life is an absolute value, subject to no exceptions."359

B8.7.4    With respect, this statement misrepresented, or, at least, caricatured the position of the principal opponents of assisted suicide and therapeutic homicide. They did not hold that human life must be preserved at all costs, without exception. In fact, Justice Smith acknowledged that the Christian Legal Fellowship had explicitly repudiated this view in its submission.360

B8.7.5    It appears that the judge's interest here was in emphasizing the possiblity of "exceptions" rather than "value."  That is, she may simply have meant, "Granted that the preservation of human life has very high value, when can we make an exception and kill someone?"

B8.7.6    Rephrasing the question in this way accounts for the judge's reference in the next paragraph to the "deprivation account of the badness of death" offered by Professor Sumner. "[W]hat makes death such a bad thing in the normal case," he said, "is what it takes away from us - the continuation of a life worth living."361 It follows that if a life is not worth living, assisted suicide or euthanasia could be a good for that person.

B8.7.7    In any case, Justice Smith did not address the difference of opinion about the value of life that she inaccurately articulated nor Professor Sumner's provocative ethical reflections.  Neither seems to have been related directly to the judge's eventual "conclusions" in Part VII.

B8.7.8    Instead, the judge emphasized differences of opinion among medical associations, individual physicians and politicians,362 among panels, committees, parliaments and senates,363 and among professional ethicists and medical practitioners.364 Consistent with these differences, she concluded that there was no "clear societal consensus" about assisted suicide or euthanasia in the case of competent adults who were "grievously ill and suffering symptoms that cannot be alleviated."365.

B8.7.9    In addition, however, Justice Smith purported to have discovered a "strong consensus" supporting the view that if physician assisted suicide were ever to be ethical, it would only be in strictly limited circumstances.366 By means of this rhetorical hypothesis she avoided the question that Part VII was supposed to answer.   

B9.  Carter Part VII: in brief

B9.1    Justice Smith’s review of ethical issues in Part VII of the ruling was unsatisfactory because much that was necessary to understand the ethical issues and controversies associated with end-of-life practices was lacking (See Appendix "C").

B9.2     Of the four questions ultimately posed and discussed in Part VII (B2.1, B8.4, B8.5, B8.6), Justice Smith actually answered only one. However, her answer - that some "experienced and reputable Canadian physicians" were willing to provide euthanasia or assisted suicide - disclosed nothing that was not already known and nothing about the ethics of assisted suicide or euthanasia.

B9.3    The judge was unable to identify any actual ethical consensus concerning physician assisted suicide and euthanasia among professional associations, physicians, ethicists, public committees and the public as a whole.

B9.4    The evidence considered by Justice Smith indicated that the question as to whether or not contemporaneous end of life practices could be distinguished from euthanasia/assisted suicide was unresolved.  The judge was personally persuaded by argument -  not by evidence - that there was no ethical distinction between them. Similarly, she was personally persuaded by argument - not evidence - that there was no ethical distinction between suicide and assisted suicide in defined circumstances.  She did not propose these personal views as conclusions or findings of fact.

B9.6    This was notably evident in the opening paragraphs of the ruling that summarized the findings of fact and legal reasoning underlying the decision about the constitutional validity of the law against assisted suicide.367 Justice Smith did not conclude that physician-assisted suicide and euthanasia were ethical, nor did she conclude that there was no ethical difference between withdrawing/withholding inefficacious treatment and lethally injecting a patient, findings later attributed to her by lead appellant counsel Joseph Arvay at the Supreme Court of Canada.368  On the contrary: she noted the lack of agreement about the ethics of assisted suicide/euthanasia and about their ethical relationship to contemporaneous end-of-life practices.369  Those findings did not contribute to her decision about the constitutionality of the law.

B10.    Carter Part VII:  judicial dicta on ethics

B10.1    The discussion of the ethical debate in Part VII is not on the same footing in relation to the ruling as the review of evidence concerning safeguards and conclusions in Part VIII. That is evident from the judge’s different explanations of the purpose of each part (B2.11-B2.12) and the different language she used in each. The language in Part VIII is that of adjudication: in Part VII, of discussion and comparison (B8.1-B8.2).

B10.2    Although briefly summarized in the opening paragraphs of the ruling,370 nothing in Part VII actually contributed to the judge’s decision about the constitutionality of the law. Part VII is obiter dicta; it could have been left out without affecting the outcome of the case.371 Other courts are not bound to adhere to or defer to it.372 This was not true of Part VIII, also summarized in the opening paragraphs of the ruling.373

B10.3    In R v Henry the Supreme Court of Canada noted that all statements that can be classed as obiter dicta do not have the same weight. Analysis that is clearly offered for guidance may be considered authoritative.374 Consistent with Justice Smith’s explanation of her purpose,375 Part VII lies outside this, in a category described in Henry as “commentary, examples or exposition that are intended to be helpful and may be found to be persuasive.”376 However, the review of ethics in Part VII is unsatisfactory and has neither binding authority nor persuasive weight.

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Notes

261.    Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331 (Written Submissions of the Intervener, Christian Legal Fellowship) at para 40–53.

262.    Carter BCSC, supra note 1 at para 161-162, 183, 316.

263.    Ibid at para 173.

264.    Ibid.

265.    Ibid.

266.    Ibid at para 165.

267.    Ibid at para 317.

268.    Ibid at para 163.

269.    Ibid at para 174.

270.    Ibid at para 175.

271.    Ibid at para 176.

272.    Ibid at para 177.

273.    Ibid at para 1184-1190.

274.    Ibid at para 178.

275.    Ibid at para 364.

276.    Ibid at para 370.

277.    Ibid at para 173.

278.    Ibid at para 175 (See Notice of Claim, supra note 19, Part 2, para. 1-3. This referred to the liberty interests of others who wish to help someone obtain "physician-assisted dying services," not suicide per se).

279.    Ibid at para 175, 180-181.

280.    Ibid at para 164.

281.    Ibid at para 173.

282.    St. Augustine, On the Free Choice of the Will, translated by Thomas Williams (Indianapolis/Cambridge: Hacket Publishing Co., 1993) at 11; The Summa Theologiae of St. Thomas Aquinas, 2nd ed, translated by Fathers of the English Dominican Province (1920) at II.I.96.4; Letter from Martin Luther King Jr. to Bishop C.C.J. Carptenter, Bishop Joseph A. Durick, Rabbi Milton L. Grafman, Bishop Nolan B. Harmon, The Rev. George H. Murray, The Rev. Edward V. Ramage, The Rev. Earl Stallings (16 April, 1963), a.k.a. Letter from Birmingham Jail, at 7–8.

283.    Carter BCSC, supra note 1 at para 163, 200, 234, 236, 300, 303-306, 308-309, 311, 322, 349 (Such reference also occur outside Part VII: e.g., para 5, 8, 492, 1198, 1336, 1369).

284.    Ibid at para 254,259.

285.    Ibid at para 261.

286.    Ibid at para 263.

287.    Ibid at para 265-267, 270.

288.    Ibid at para 319, 344 (They are identified in para 254).

289.    Muir v. Alberta, 1996 CanLII 7287. 

290.    College of Physicians and Surgeons of British Columbia, Practice Standard: Sexual Misconduct, Vancouver, BC: CPSBC, 2022.

291.    Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst (KNMG), Affectieve relatie met de patiënt, Utrecht: KNMG, 2023.

292.    Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst (KNMG), “The Role of the Physician in the Voluntary Termination of Life” (30 August, 2011), Protection of Conscience Project (website), cited in Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst (KNMG), “Euthanasia in the Netherlands” (16 August, 2017), KNMB (website).

293.    Y Michael Barilan, “Of Doctor-Patient Sex and Assisted Suicide” (2003 5:June Israeli Med Ass J 460.

294.    Carter BCSC, supra note 1 at para 274-277.

295.     Ibid at para 233 (Plaintiff witnesses: Prof. Wayne Sumner; Dr. Marcia Angell; Prof. Margaret Battin; Dr. Upshur; Dr. Gerritt Kimsma. Defendant witnesses: Prof. John Keown; Prof. Thomas Koch; Dr. Eugene Bereza).

296.    Ibid at para 234.

297.    Ibid at para 238.

298.    Ibid at para 242.

299.    Ibid at para 240.

300.    Ibid at para 246-247.

301.    Ibid at para 244.

302.    Ibid at para 253.

303.    Ibid at para 235-236.

304.    Ibid at para 251.

305.    Ibid at para 243.

306.    Ibid at para 203-204, 680.

307.    Ibid at para 1370.

308.    Ibid at para 185.

309.    Ibid at para 207-223.

310.    Ibid at para 227-230.

311.    Ibid at para 231.

312.    Ibid at para 318, 320.

313.    Ibid at para 163, 176; 186, 234-237, 321-322.

314.    Ibid at para 177.

315.    Ibid at para 278-284, 286-287.

316.    Ibid at para 285.

317.    Ibid at para 347.

318.    Ibid at para 280.

319.    Ibid at para 347.

320.    Ibid at para 288-292.

321.    Ibid at para 295-296, 298.

322.    Prof. Sheila McLean, Prof. Jocelyn Downie, Prof. Ross Upshur, Prof. Johannes J.M. van Delden, Prof. Udo Schuklenk.

323.    Carter BCSC, supra note 1 at para 123.

324.    Ibid at para 124 (The witnesses were Prof. Ross Upshur, Prof. Johannes J.M. van Delden and Prof. Sheila McLean. Prof. Jocelyn Downie instructed plaintiff witnesses.).

325.    Linda Couture, “Results of public hearings held by The Select Committee on dying with dignity in Quebec: Briefs submitted" (15 November, 2011), Vivre Dans La Dignité (blog).

326.    Carter BCSC, supra note 1 at para 290-292, 346.

327.    Ibid at para 346.

328.    Ibid at para 300-307.

329.    Ibid at para 355.

330.    Ibid at para 299.

331.    Director of Public Prosecutions, “Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide” (February 2010, updated October 2014), Crown Prosecution Service (website) at para 43.14.

332.    Ibid at para 314-315.

333.    Ibid at para 309; 190-193.

334.    Ibid at para 309.

335.    Ibid at para 310.

336.    Ibid at para 311 (Her comment also demonstrated the shaping and limiting power of the pleadings, which excluded consideration of practitioners and other health care workers whose interests were affected by the judgement).

337.    Ibid at para 312-313.

338.    Ibid at para 316.

339.    Ibid at para 326-333.

340.    Ibid at para 321-323.

341.    Ibid at para 324-325.

342.    Ibid at para 330.

343.    Rodriguez, supra note 13 at 607.

344.    Carter BCSC, supra note 1 at para 334.

345.    Ibid at para 5.

346.    Ibid at para 335 (Emphasis added. She elsewhere referred to this as "the preponderant ethical opinion": para 1336).

347.    Ibid at para 336-337.

348.    Ibid at para 338.

349.    Ibid at para 1369.

350.    “If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.” Re B (Children) [2008] UKHL 35 at para 2.

351.    "In any civil case the plaintiff must prove their case on a balance of probabilities if they are to succeed. This means that the plaintiff must prove that his facts tip the scale in his favor even if it is only a 51% probability that he is correct." McIver v. Power, [1998] P.E.I.J. No. 4, Prince Edward Island Supreme Court, para. 5.
(Accessed 2016-08-27).

352.    Snell vs. Farrell [1990] 2 SCR 311 at 330.

353.    Ibid at para 339.

354.    Ibid at para 335, 339.

355.    Ibid at para 340, 357.

356.    Ibid at para 5

357.    Ibid at para 8-10, 15-18

358.    Abudaziz Sachedina, Islamic Biomedical Ethics: Principles and Application (Oxford: University Press, 2009) at 166.

359.    Ibid at para 350.

360.    Ibid at para 171.

361.    Ibid at para 351.

362.    Ibid at para 343.

363.    Ibid at para 345-346.

364.    Ibid at para 348.

365.    Ibid at para 358. See also para 6, 7.

366.    Ibid at para 342, 358.

367.    Ibid at para 4-18.

368.    Carter SCC webcast, supra note 80 at 00:38:35 to 00:40:31.

369.    Carter BCSC, supra note 1 at para 4-7.

370.    Ibid.

371.    Irwin Law, Canadian Online Legal Dictionary, (Toronto, Ont: 2023) sub verbo “obiter dicta”.

372.    The Honorable Justice Malcolm Rowe & Leanna Katz, “A Practical Guide to Stare Decisis” (2020) 41:May Windsor Rev Legal Soc Issues 1 at 7.

373.    Carter BCSC, supra note 1 at para 8–10.

374.    R v Henry 2005 SCC 76, [2005] 3 SCR 609 [Henry] at para 57.

375.    Carter BCSC, supra note 1 at para 163-64, 178.

376.    Henry, supra note 375 at para 57.