Appendix "A"

Sean Murphy*

A1.    Carter criteria for euthanasia and physician assisted suicide

A2.    Carter and the criminal law

A3.    Carter and freedom of conscience and religion

A1.    Carter criteria for euthanasia and physician assisted suicide

Full Text

A1.1    In February, 2015, the Supreme Court of Canada struck down the criminal law to the extent that it prohibits physician assisted suicide and euthanasia in circumstances defined by the Court.1

A1.2    The ruling requires that physician assisted suicide and euthanasia be limited to competent adults who clearly consent to the procedure.2 The use of the present tense suggests that consent cannot be established by an advance directive or provided by a substitute medical decision maker if the patient is otherwise unable to express valid consent.3

A1.3   According to Carter, the condition need not be terminal, but the patient must have "a grievous and irremediable medical condition (including an illness, disease or disability)."4 The word "including" used here means that assisted suicide and euthanasia may be provided not only for "illness, disease or disability," but for other medical conditions - frailty, for example.5

A1.4    While the Court notes that "minor medical conditions" would not qualify6 and that the medical condition must be "grievous," these are vague terms. Moreover, the Court does not specify whether it is the patient or the physician who determines that a condition is grievous. The medical condition must be "irremediable"; in oral argument, the appellants suggested this could be understood as "incurable."7 However, the Court further states that individuals are entitled to refuse any treatments they find unacceptable,8 so the ruling actually means that even treatable and curable medical conditions can be considered irremediable and incurable if the patient refuses treatment.

A1.5    Mental illness is a medical condition, and some kinds of mental illness are thought not to affect decisional capacity or competence. In passing, the Court remarks that the parameters they would propose in the reasons would not apply to "persons with psychiatric disorders."9 However, the parameters actually laid out do not explicitly exclude mental illness, so, on this point, the ruling is ambiguous.

A1.6    Finally, the medical condition must cause "enduring suffering that is intolerable to the individual."10 The Court does not specify that the suffering must be physical. Since it acknowledges the distinction between physical and psychological suffering11 and pain and suffering,12 the reference to intolerable suffering can be understood to mean both. Although the ruling does not say so, it is generally understood that suffering is subjectively assessed by the individual experiencing it.

A2.    Carter and the criminal law

A2.1    If all of these criteria are met, a physician who kills a patient or helps him commit suicide cannot be charged for murder or assisted suicide or any other offence. However, Carter did not entirely strike down murder and assisted suicide laws. They were invalidated only to the extent that they prevent homicide and assisted suicide by physicians adhering to the Court's guidelines.

A2.2    In the absence of legislation, the appropriate historical reference point for understanding the legal effect of Carter is the period between the 1938 case of R. v. Bourne and Canada's 1969 abortion law reform. Bourne was an English case that established a defence for physicians who provided abortions deemed necessary to preserve the life of the mother.13

A2.3    Though this condition was broadly construed, physicians were still liable to prosecution if the abortion were shown not to be required for that purpose. In 1967, CMA representatives told a parliamentary committee that "uncertainty about transgression of the law" was one of the reasons the Association supported reform of the abortion law.14 Physicians wanted more than a defence to a charge. They wanted positive assurance that they would not be prosecuted.

A2.4    That assurance came when the Supreme Court of Canada struck down the abortion law entirely in the Morgentaler case. Physicians cannot be charged for providing abortions no matter what the circumstances.

A2.5    However, even with legislation - but particularly without it - it is difficult to see how physicians who are parties to homicide and suicide can entirely avoid some "uncertainty about transgression of the law." In the first place, the law against counselling suicide still stands [241(a) Criminal Code], so, while physicians may assist with suicide under the Carter guidelines, they can be charged if they recommend it.

A2.6.    Second, as a matter of public policy, complete immunity from prosecution for murder or manslaughter can be safely guaranteed only for public executioners acting in the course of their duties. Thus, while the Carter ruling means that the state cannot prevent qualified patients from obtaining therapeutic homicide and suicide from physicians, it also means that physicians who fail to follow the Carter guidelines can be charged for first or second degree murder,15,16 or manslaughter,17 or administering a noxious substance.18

A2.7.    Further, in such cases it would be a crime to conspire with the physician,19 to do or omit to do anything for the purpose of aiding the physician,20 to abet the physician,21 or to counsel, procure, solicit or incite a physician to violate the Carter guidelines,22 even if a patient is not ultimately killed.23 Thus, anyone who deliberately participates in or facilitates euthanasia or assisted suicide by "effective referral"24 or similar means is liable to be charged unless the act is exempted by Carter from prosecution.

A2.8    The ruling itself is limited to the constitutional validity of the criminal law. It does not impose a legal duty on the state or upon anyone else to pay for euthanasia or assisted suicide or to provide or participate in them.

A3.    Carter and freedom of conscience and religion

A3.1    That is essentially what the judges themselves state in Carter.

In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid. What follows is in the hands of the physicians' colleges, Parliament, and the provincial legislatures (para. 132). (Emphasis added)

A3.2    Note that the Court here referred to "physicians" (plural), not "a physician" (singular). This passage indicates that striking down the criminal prohibition did not, in the Court's view, create any obligation on the part of physicians (individually or collectively) to provide assisted suicide or euthanasia. The statement is limited to providing - doing the killing or providing the lethal prescription.

A3.3    However, the Court included the broader term - participate - and the singular - physician - as it continued:

. . . we note - as did Beetz J. in addressing the topic of physician participation in abortion in R. v. Morgentaler -- that a physician's decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief (pp. 95-96). In making this observation, we do not wish to pre-empt the legislative and regulatory response to this judgment. Rather, we underline that the Charter rights of patients and physicians will need to be reconciled (para. 132). (Emphasis added)

A3.4    To suggest that this reconciliation is to be accomplished by forcing unwilling physicians to become parties to homicide and suicide is inconsistent with the comments of Justice Beetz in Morgentaler, cited with approval by the full bench of the Court in Carter:

Nothing in the Criminal Code obliges the board of an eligible hospital to appoint therapeutic abortion committees. Indeed, a board is entitled to refuse . . . in a hospital that would otherwise qualify to perform abortions, and boards often do so in Canada. Given that the decision to appoint a committee is, in part, one of conscience, and, in some cases, one which affects religious beliefs, a law cannot force a board to appoint a committee any more than it could force a physician to perform an abortion.25 (Emphasis added)

A3.5    Note that Justice Beetz, while distinguishing between appointing a committee and performing an abortion, nonetheless considered both acts to involve judgements of conscience and religious belief, and the legal suppression of one to be the equivalent of the legal suppression of the other.

A3.6    Therapeutic abortion committees did not provide abortions. In fact, members of therapeutic abortion committees were prohibited from doing so.26 The committees facilitated abortions by authorizing them. The refusal of boards to approve the formation of such committees was a refusal to become part of (participate in) a chain of causation culminating in abortion, even if not every case brought to a committee resulted in abortion.

A3.7    Thus, Justice Beetz' comments, affirmed by Carter, are authority for the proposition that the state is precluded from forcing individuals or institutions to provide morally contested procedures or to participate indirectly in them by referral or other forms of causal facilitation.

A3.8    At the very least, this passage indicates that the suppression or restriction of freedom of conscience or religion by compelling indirect participation in a morally contested procedure is legally equivalent to compelling direct participation, a conclusion wholly consonant with the law on criminal responsibility and civil liability. The same constitutional standard applies, whether the state means to force unwilling physicians to kill patients themselves, or to force them to arrange for patients to be killed by someone else.

A3.9    Put another way, compelling indirect participation in a morally contested act is not a constitutionally valid 'solution' for the 'problem' that arises from being unable to compel direct participation.

A3.10    The Court's statement that "the Charter rights of patients and physicians will need to be reconciled" is not, as some seem to think, a warrant for the suppression of freedom of conscience and religion among health care workers.

A3.11    The Charter right of patients clearly established by Carter is a legal right not to be impeded or obstructed by the state in seeking euthanasia and assisted suicide in accordance with the Court's guidelines from willing physicians, except to the extent that impediments or obstructions can be demonstrably justified in a free and democratic society.

A3.12    The Charter right of physicians clearly established by Carter is their legal right not to be to impeded or obstructed by the state in providing euthanasia and assisted suicide in accordance with the Court's guidelines, except to the extent that impediments or obstructions can be demonstrably justified in a free and democratic society.

A3.13    Any additional rights claims are derived by reading into the ruling what the judges either did not address, or purposefully and expressly left out.

Notes:

1. Carter v. Canada (Attorney General), 2015 SCC 5 (Hereinafter "Carter") (Accessed 2015-02-07)

2.  Carter, para. 4, 127, 147

3.  This interpretation has been adopted by others. The College of Physicians and Surgeons of Alberta recently released a policy on euthanasia and assisted suicide that states, "PAD cannot be provided to patients who lack the capacity to make the decision, including when consent can only be provided by an alternate decision maker, is known by patient wishes or is provided through a personal directive." (Emphasis in the original). College of Physicians and Surgeons of Alberta, Physician Assisted Death (December, 2015) (Accessed 2015-12-18)

4.  Carter, para. 4, 127, 147

5.  Cimons M. "Frailty Is a Medical Condition, Not an Inevitable Result of Aging (Op-Ed)." Livescience, 29 November, 2013. (Accessed 2015-06-28).

6.  Carter, para. 111

7.  "We are limiting our case to people whose condition is irremediable, or incurable if you want to use that language, because it, assisted dying should only be allowed in the most serious cases. And not just because somebody wants to. It's because their condition is not going to get any better." Supreme Court of Canada, Webcast of the Hearing on 2014-10-15, 35591, Lee Carter, et al. v. Attorney General of Canada, et al (British Columbia) (Civil) (By Leave). Joseph Arvay, Oral Submission, 113:35/491:20 - 114:50/491:20 (Accessed 2015-06-28)

8.  Carter, para. 127

9.  Carter, para. 111

10.  Carter, para. 4, 127, 147

11.  Carter, para 40 , 64

12.  Carter, para. 68

13.  R. v Bourne (1939) 1KB 687

14.  "'We don't like being lawbreakers,' Dr. Aitken told the committee in partial explanation of the C.M.A's motivation in supporting the move to expunge the Criminal Code's prohibition of abortion. Dr. Gray commented that while he knew of no doctor having been prosecuted for performing an abortion openly in a hospital, there was still the uncertainty about transgression of the law. Dr. Cannell reported there were 262 therapeutic abortions performed in Canadian hospitals between 1954 and 1965." Waring G. "Report from Ottawa." CMAJ Nov. 11, 1967, vol. 97, 1233

15.  Criminal Code (R.S.C., 1985, c. C-46) (Hereinafter "CC"), Section 229; Section 231(1)  (Accessed 2014-07-25)

16.  CC, Section 229; Section 231(7)  (Accessed 2014-07-25)

17.  CC, Section 232(1) (Accessed 2014-07-25)

18.  CC, Section 245. (Accessed 2014-07-25)

19.  CC, Section 465. (Accessed 2014-07-25)

20.  CC, Section 21(b). (Accessed 2014-07-25)

21.  CC, Section 21(c). (Accessed 2014-07-25)

22.  CC, Section 22 (Accessed 2014-07-25)

23.  CC, Section 464.  (Accessed 2014-07-25)

24.  "An effective referral means a referral made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency. The referral must be made in a timely manner to allow patients to access care. Patients must not be exposed to adverse clinical outcomes due to a delayed referral."  College of Physicians and Surgeons of Ontario, Professional Obligations and Human Rights (March, 2015) (Accessed 2015-12-28).

25.  R. v. Morgentaler  (1988)1 S.C.R 30 (Supreme Court of Canada) p. 95-96. (Accessed 2015-02-26)

26.  CC, Section 287(4)a. (Accessed 2015-06-27).