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Report No. 196

Sopinka J continued:

"First of all, the prohibition in (sec 241) is not restricted solely to the case of the terminally ill-patient, for whom we can only have sympathy, or solely to his physician or a member of his family who helps to put an end to his suffering. The section is more general and applies to a variety of situations for which it is much more difficult to feel sympathy. To decriminalise completely the act of aiding, abetting or counseling suicide would therefore not be a valid legislative policy. But could it be in the case of the terminally ill?

The probable reason why legislation has not been made an exception for the terminally ill lies in the fear of the excesses or abuses to which liberalization of the existing law could lead. As in the case of 'compassionate murder', decriminalization of aiding suicide would be based on the humanitarian nature of the motive leading the person to provide such aid, counsel or encouragement. As in the case of compassionate murder, moreover, the law may legitimately fear the difficulties involved in determining the true motivation of the person committing the act.

Aiding or counseling a person to commit suicide, on the one hand, and homicide, on the other, are sometimes extremely closely related. There is reason to fear that homicide of the terminally ill for ignoble motive may readily be disguised as aiding suicide."

In its Working Paper (28) earlier referred to, the Law Reforms Commission had originally recommended that the consent of the Attorney General should be required before prosecution could be brought under section 241(b). However, after negative public response, the Commission retracted this recommendation in its final Report of 1983.

Sopinka J stated, that, therefore, while both the House of Lords and the Law Reform Commission of Canada have great sympathy for the plight of those who wish to end their lives so as to avoid significant suffering, neither has been prepared to recognise that the active assistance of a third party in carrying out this desire should be condoned, even for the terminally ill.

The basis of this refusal is twofold, it seem.- first, the active participation by one individual in the death of another is intrinsically morally and legally wrong, and second, there is no uncertainty that abuses can be prevented by anything less than a complete prohibition. Creating an exception for the terminally ill might frustrate the purpose of the legislation of protecting the vulnerable because adequate guidelines to control abuse are difficult or impossible to develop."

Sopinka J then reviewed the legislation in other countries. He said nowhere assisted suicide is expressly permitted and most countries have provisions expressly dealing with assisted suicide which are atleast as restrictive as section 241.- Austrian Penal Act, 1945 (sec 139b), Spanish Penal Code (Act 409), Italian Penal Code of 1930 (Act 580).

The relevant provision of the Suicide Act, 1961 of UK punishes a 'person who aids, abets, counsels or procures the suicide of another or an attempt by another, to commit suicide' and the form of prohibition is echoed in the criminal statutes of all state and tribunal jurisdictions in Australia. (M. Otlowiki, 'Mercy Killing cases in the Australian Criminal Justice System' (1993) 17 Crim LJ 10) The UK provision is apparently the only prohibition on assisted suicide which has been subjected to judicial scrutiny for its impact on human rights prior to the present case.

In Application No 10083/82, R vs. UK, (4th July, 1983)(D.R. 33, at p 270), the European Commission of Human Rights considered whether section 2 of the Suicide Act, violated either the right of privacy in Article 8 or freedom of expression in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The applicant, who was a member of a voluntary euthanasia organisation, had been convicted on several counts of conspiracy to aid and abet suicide for his actions in placing persons with a desire to kill themselves in touch with his co-accused who then assisted them in committing suicide.

The European Commission held (at pp 271- 272) that the acts of aiding, abetting, counselling or procuring suicide were 'excluded from the concept of privacy by virtue of their trespass on the public interest of protecting life, as reflected in the criminal provisions of the 1961 Act', and upheld the applicant's conviction for the offence. Further, the Commission upheld the restriction on the applicant's freedom of expression, recognizing (at p 272).

"the States legitimate interest in this case in taking measures to protect, against criminal behaviour, the life of its citizens particularly those who belong to especially vulnerable categories by reason of their age or infirmity. It recognizes the right of the State under the Convention to guard against the inevitable criminal abuses that would occur, in the absence of legislation, against the aiding and abetting of suicide."

Although the factual scenario in that decision was somewhat different from the one at bar in (Canada), it is significant that neither the European Commission of Human Rights nor any other judicial tribunal has ever held that the State is prohibited on constitutional or human rights grounds from criminalizing assisted suicide.

Some European countries have mitigated prohibitions on assisted suicide which might render assistance in a case similar to that before the Canadian Supreme Court legal in those countries. In the Netherlands, although assisted suicide and voluntary active euthanasia are officially illegal, prosecutions will not be laid so long as there is compliance with medically established guidelines. Critics of the Dutch approach point to evidence suggesting that involuntary active euthanasia (which is not permitted by the guidelines) is being practised to an increasing degree.

This worrisome trend supports the view that a relaxation of the absolute prohibition takes us down 'the slippery slope'. Certain other European countries, such as Switzerland and Denmark, emphasise the motive of the assistance in suicide, such that the Swiss Penal Code, Article 115, criminalizes only those who incite or assist a suicide for a selfish motive and the Danish Penal Code, Article 240, while punishing all assistance, imposes a greater penalty upon them who act out of self-interest.

In France, while no provision of the Penal Code addresses specifically the issue of assisted suicide, failure to seek to prevent someone from committing suicide may still lead to criminal sanctions under Article 63, para 2 (omission to provide assistance to a person in danger) or Article 319 of that Code (involuntary homicide by negligence or carelessness). Moreover, the Loi no. 87-1133 du 31 decembre 1987, introduced two new articles to the Penal Code, Articles 318- 1 and 318-2, which criminalize the provocation of suicide. This offence, which requires a form of incitement over and above merely aiding in the commission of a suicide, was adopted in response to the macabre impact of the book 'Suicide, mode d'emploi' (1982).

Similarly, a few American jurisdictions take into account whether the accused caused the victim to commit suicide by coercion, force, duress or deception in deciding whether the charge should be murder, manslaughter or assisted suicide (Connecticut, Maine and Pennsylavania), or whether the person is guilty of even assisted suicide (Puerto Rico and Indiana). (See C D Shaffer, "Criminal Liability for Assisting Suicide' (1986)8 Columbia L Rev 348 (at pp 331-53) nn 25-26, 35-36.)

As is the case in Europe and the Commonwealth, however, the vast majority of those American statutes which have statutory provisions dealing specifically with assisted suicide, have no intent or malice requirement beyond the intent to further the suicide, and those States which do not deal with the matter statutorily appear to have the common law authority outlawing assisted suicide (Shaffer, supra, at p 352; and M.M. Penrose, 'Assisted Suicide:

A Tough Pill to Swallow' (1993) 20 Pepp. L. Rev 689 (700-701). It is notably, also that recent movement in two American States to legalise physician-assisted suicide in circumstances similar to those at bar, have been defeated by the electorates in those States. On Nov. 5, 1999, Washington State voters defeated Initiative 119, which would have legalized physician assisted suicide where two doctors certified that the patient would die in six months and two disinterested witnesses certified that the patient's choice was voluntary.

One year later, Proposition 161, which would have legalized assisted suicide in California and which incorporated stricter safeguards than did Initiative 119, was defeated by California voters (usually thought to be the most accepting of such legal innovations), by the same margin as resulted in Washingto.- 54 to 46 per cent. In both States, the defeat of the proposed legislation seems to have been due primarily to concern as to whether the legislation incorporated adequate safeguards against abuse (Penrose, Supra, at pp 708-714).

Sopinka J notes that, atleast in California, the conditions to be met were more onerous than those set out by McEachern CJ (British Columbia in the Court below) and by his dissenting colleagues in the Canadian Supreme Court, (dissenting), Chief Justice & Justice McLauchlin, in the present case.

Overall, Sopinka J, says that it appears that a blanket prohibition against assisted suicide similar to that in section 241, is the norm among Western democracies, and such a prohibition has never been adjudged to be unconstitutional or contrary to fundamental human rights. Recent attempts to alter the status quo in USA have been defeated by the electorate, suggesting that despite a recognition that a blanket prohibition causes suffering in certain cases, the societal concern with preserving life and protecting the vulnerable, renders a blanket prohibition preferable to any law which might not adequately prevent abuse.

Sopinka J concludes that sanctity of life as a general principle is recognized in Canada and Western democracies subject to limited and narrow exceptions in situations in which notions of personal autonomy and dignity must prevail. However, those societies continue to draw distinctions between passive and active forms of intervention in the dying process, and with very few exceptions, prohibit assisted suicide in situations akin to that of Rodriguez. The task then becomes to identify the rationales upon which the distinctions are based and to determine whether they are constitutionally supportable. Sopinka J says:

"The distinction between withdrawing treatment upon a patient's request, such as occurred in the Nancy B case, on the one hand, and assisted suicide on the other, has been criticized as resting on a legal facto.- that is, the distinction between active and passive forms of treatment. The criticism is based on the fact that the withdrawal of life support measures is done with the knowledge that death will ensue, just as is assisting suicide, and that death does, in fact, ensue as a result of action taken. See, for example, the Harvard Law Review note 'Physician Assisted Suicide and the Right to die with Assistance' (1992) 105 Harv L Rev. 2021 (at 2030-31).

Other commentators, however upheld the distinction on the basis that in the case of withdrawal of treatment, the death is 'natural.- the artificial forces of medical technology which have kept the patient alive are removed and nature takes its course.

In the case of assisted suicide or euthanasia, however, the course of nature is interrupted, and death results directly from the human action taken. ((E.W. Keysenlingk, Sanctity of Life or Quality of Life in the context of Ethics, Medicine and Law (1979), a Study paper for the Law Reform Commission of Canada's Protection of Life Services). The Law Reform Commission (of Canada) calls the distinction fundamental (at p 19 of the Working Paper 28).

Whether or not one agrees that the active vs passive distinction is maintainable, however, the fact remains that under our common law, the physician has no choice but to accept the patient's instructions to discontinue treatment. To continue to treat the patient when the patient has withdrawn consent to that treatment constitutes battery 250(Ciarlariello and Nancy B, Supra). The doctor is, therefore, not required to make a choice which will result in the patient's death as he would be if he chooses to assist suicide or perform active euthanasia.

The fact that doctors may deliver palliative care to terminally ill patients without fear of sanction, it is argued, attenuates to an even greater degree any legitimate distinction which can be drawn between assisted suicide and what are currently acceptable forms of medical treatment. The administration of drugs designed for pain control in dosages which the physician knows will hasten death constitutes active contribution to death by any standard.

However, the distinction drawn here is one based on intentio.- in the case of palliative care, the intention is to ease pain, which has the effect of hastening death, while in the case of assisted suicide, the intention is undeniably to cause death. The Law Reform Commission, although it recommended the continued criminal prohibition of both euthanasia and assisted suicide, stated, at p 70 of the Working Paper, that a doctor should never refuse palliative care to a terminally ill person only because it may hasten death.

In my view, distinctions based upon intent are important, and, in fact, form the basis of our criminal law. While factually, the distinction may, at times, be difficult to draw, legally it is clear. The fact that in some cases, the third party will, under the guise of palliative care commit euthanasia or assist in suicide and go unsanctioned due to the difficulty of proof, cannot be said to render the existence of the prohibition fundamentally unjust."

Sopinka J also refers to guidelines of medical associations. He says that the official position of the Canadian, British Medical Association, the Council of Ethical and Judicial Affairs of the American Medical Association, World Medical Association and the American Nurses Association, are all against decriminalizing assisted suicide. Given the concerns of abuse that have been expressed and the great difficulty in creating appropriate safeguards to prevent these, it cannot be said that the blanket prohibition on assisted suicide is arbitrary or unfair, or that it is not reflective of fundamental values. Article 24(h) is valid.

We are not referring to the dissenting judgments in Rodriguez.

Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back

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