Report No. 196
Sopinka J then said:
"Although these notions have taken hold in the courts, the judiciary's silence regarding such constitutional principles probably reflects a concern that, once recognized, rights to die might be uncontainable and might prove susceptible to grave abuse, more than it suggests that courts cannot be persuaded that self-determination and personhood may include a right to dictate the circumstances under which life is to be ended.
In any event, whatever the reason for the absence in the courts of expansive notions about self-determination, the resulting deference to legislatures may prove wise in light of complex character of the right at stake and the significant potential that, without careful statutory guidelines and gradually evolved procedural controls, legalizing euthanasia, rather then respecting people, may endanger personhood."
The learned Judge also stated that in this case, it is not disputed that, in general, section 241(b) is valid and is a desirable legislation which fulfils the government's objectives of preserving life and protecting the vulnerable. The complaint is that the legislature is over-inclusive because it does not exclude from the reach of the prohibition those in the situation of the appellant who are terminally ill, mentally incompetent, but cannot commit suicide on their own.
It is also argued that the extension of the prohibition to the appellant is arbitrary and unfair as suicide itself is not unlawful and the common law allows a physician to withhold or withdraw life saving or life-maintaining treatment on the patient's instruction and to administer palliative care which has the effect of hastening death. The issue is whether, given this legal context, the existence of a criminal prohibition on assisting suicide for one in the appellant's situation is contrary to principles of fundamental justice.
The words, 'except in accordance with principles of fundamental justice' occurring in Article 7 of the Charter are to be interpreted in the light of common law and legislative history but a mere common law rule or historical precept may not amount to principle of fundamental justice.
The appellant asserts that it is a principle of "fundamental justice" that the human dignity and autonomy of individuals be respected and that to subject her to needless suffering in this manner is to rob her of her dignity. Respect for human dignity underlies many of the rights and freedoms in the Canadian Charter. A just balance has to be achieved between interests of the individual and those of the State.
Both of which factors play a part in assessing whether a particular law violates the principles of fundamental justice. The principles of fundamental justice are concerned not only with the interest of the person who claims his liberty has been limited but with the protection of society. Fundamental justice requires that a fair balance be struck between these interests both substantially and procedurally.
Question is whether the blanket prohibition in section 241(b) against assisted suicides is arbitrary or unfair in that it is unrelated to the state's interest in protecting the vulnerable, and that it lacks a foundation in the legal tradition and societal beliefs which are said to be represented by the prohibition.
Section 241(b) has as its purpose, the protection of the vulnerable who might be induced in moments of weakness to commit suicide. This purpose is grounded in the State's interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken. This policy finds expression not only in the Criminal Code which prohibit murder and other violent acts against others notwithstanding the consent of the victim, but also in the policy against capital punishment and, until its repeal, attempted suicide.
This is not only a policy of the state, however, but is part of a fundamental concept of sanctity of human life. The Law Reform Commission (Canada) expressed this philosophy appropriately in its Working Paper 28, Euthanasia, Aiding Suicide and Cessation of Treatment' (1982) (at page 36):
"Preservation of human life is acknowledged to be a fundamental value of a society. Historically, our criminal law has changed very little on this point. Generally speaking, it sanctions the principle of the sanctity of human life. Over the years, however, law has come to temper the apparent absolutism of the principle, to delineate its intrinsic limitations and to define its true dimensions."
Sopinka J stated that the principle of sanctity of life is no longer seen to require that all human life be preserved at all costs. Rather, it has come to be understood, atleast by some, as encompassing quality of life considerations, and to be subject to certain limitations and a qualification reflective of personal autonomy and dignity. An analysis of our legislative and social policy in this area is necessary in order to determine whether 'fundamental principles' have evolved such that they conflict with the validity of the balancing of interests undertaken by Parliament.
As to the history of suicide provisions, at common law, suicide is a form of felony, homicide and offended against God and the king's interest in the life of his citizens (Blackstone's Commentaries, 1769, Vol 4, p 189). This was also the view first propounded by Plato and Aristotle. (M.G. Velasquez, Defining Suicide, 1987, "3 issues, in Law and Medicine", 37 at 40).
"So far as the contrary school of thought is concerned, there has been no consensus, the Roman Stoics supporting suicide (Velasquez at p 40) while Chancellor Francis Bacon preferred leaving to the doctors the duty of lessening or even ending, the suffering of their patients (L. Depaule, 'Le Droit a la mort: rapport juridique', (1974), 7 Human Rights Journal 464 at p 467)."
Burial indignities were imposed in cases of suicide in France while in England, the property of the person who committed suicide was to be taken away and his body placed at the cross-roads of two highways with a stake driven through it. As it was not possible to punish the person who committed suicide successfully, the law tried to make attempted suicide an offence. Then the Suicide Act, 1961 (42) (cl. 60) of France created an offence of assisting suicide on the same lines as section 241 of the Criminal Code, 1985. Attempted suicide as an offence as per section 238 of the original Code until its repeal by statute SO in 1972 (C 13, section 16). But the fact of decriminalization of 'attempted suicide' has no bearing on protection of assisted suicide.