Notre Dame Journal of Law, Ethics & Public Policy

Volume 28 | Issue 1 Article 1

5-1-2014 A Right to Voluntary Euthanasia? Confusion in Canada in Carter John Keown

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Recommended Citation John Keown, A Right to Voluntary Euthanasia? Confusion in Canada in Carter, 28 Notre Dame J.L. Ethics & Pub. Pol'y 1 (2014). Available at: http://scholarship.law.nd.edu/ndjlepp/vol28/iss1/1

This Article is brought to you for free and open access by the Notre Dame Journal of Law, Ethics & Public Policy at NDLScholarship. It has been accepted for inclusion in Notre Dame Journal of Law, Ethics & Public Policy by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. 34929-nde_28-1 Sheet No. 6 Side A 05/07/2014 15:37:06 , Fleming v. CARTER Carter v. Canada (Att’y General) , Justice Lynn Smith held that , Justice Lynn Smith * EOWN 1 K OHN NTRODUCTION J I a first instance decision in the Supreme Court a first instance decision in the Supreme 1 , CONFUSION IN CANADA IN IN CANADA CONFUSION A RIGHT TO VOLUNTARY EUTHANASIA? TO VOLUNTARY A RIGHT Carter v. Canada Carter v. Canada (Attorney General) Carter v. Canada (Attorney ) misinterpreting the evidence from jurisdictions with relaxed laws. evidence from jurisdictions with relaxed ) misinterpreting the At the heart of the ongoing public policy debate about whether At the heart of the ongoing public In In 1. Carter v. Canada (Att’y General), [2012] B.C.S.C. 886 (Can. B.C.). The judg- * Kennedy Institute of Ethics, Rose F. Kennedy Professor of Christian Ethics, [2012] B.C.S.C. 886 (Can. B.C.), the author served as an expert witness for the Attorney General of Canada. ment runs to over 1400 paragraphs. Georgetown University.Cambridge; D.Phil., University of Oxford; M.A., University of Lecturer in Law in the Faculty of Law in Ph.D., University of Cambridge. Formerly Senior Queens’ College, Cambridge, and Senior the University of Cambridge, Fellow of Research Fellow of Churchill College, Cambridge. In ARTICLES \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 1 7-MAY-14 15:32 voluntary euthanasia or physician-assisted suicide should be decriminal- voluntary euthanasia or physician-assisted be effectively controlled.ized is the question whether they could Could control and protection that is war- a relaxed law achieve the degree of and interests to be protected, ranted by the importance of the rights by proponents of decriminaliza- and that has regularly been accepted them to be attainable, in virtue of tion to be desirable, and asserted by proposals? safeguards stipulated in their various of British Columbia, Justice Lynn Smith found a right to voluntary of British Columbia, Justice Lynn in Sections seven and fifteen euthanasia and physician-assisted suicide and Freedoms.of the Canadian Charter of Rights Her holding hangs factual finding that the evidence to a large extent on her controversial the Canadian Criminal Code’s prohibitions on murder and assisting suicide Code’s prohibitions on murder and the Canadian Criminal and Freedoms to 15 of the Canadian Charter of Rights infringe Sections 7 and and physi- prohibitions outlaw voluntary, active euthanasia the extent that those cian-assisted suicide. in at least This Article suggests the judgment is defective of human the principle of the inviolability four key respects: misunderstanding against those laws against assisting suicide discriminate life; concluding that “slippery slope” of committing suicide; evading the logical physically incapable in the Irish High Court has since concluded argument; and (as Ireland British Columbia of Justice Smith has been reversed by the Although the judgment questions of constitutional law, not on Court of Appeal, the reversal turned on these four criticisms. important, not least as the case is to These criticisms remain be heard by the Supreme Court of Canada. 34929-nde_28-1 Sheet No. 6 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 6 34929-nde_28-1 34929-nde_28-1 Sheet No. 6 Side B 05/07/2014 15:37:06 6 [Vol. 28 and Section 222(4) and Section 4 7 ETHICS & PUBLIC POLICY 2 Section 222(1) of the Code provides of the Code Section 222(1) LAW, 3 8 9 NOTRE DAME JOURNAL OF at § 15(1). at para. 10. Id. Id. Section 14 states that no person is entitled to consent to have that no person is entitled to consent Section 14 states 5 The judge also declared that the Criminal Code unjustifiably The judge also declared that the Section 7 of the Canadian Charter of Rights and Freedoms Canadian Charter of Rights and Section 7 of the Section 241 of the Canadian Criminal Code prohibits counseling, Criminal Code of the Canadian Section 241 Schedule B to the Canada Act, 1982, c. 11, § 7 (U.K.). Everyone has the right to life, liberty and security of the person to life, liberty and security of the Everyone has the right to be deprived thereof except in accordance and the right not of fundamental justice. with the principles has the equal before and under the law and Every individual is benefit of the law without right to the equal protection and equal discrimination based on discrimination and, in particular, without religion, sex, age or mental race, national or ethnic origin, colour, or physical disability. 9. Carter v. Canada (Att’y General), [2012] B.C.S.C. 886, at para. 1393a (Can. 3. Criminal Code, R.S.C. 1985, c. C-46, §4. 241 (Can.). Criminal Code, R.S.C. 1985, c. C-34, §5. 222(1) (Can.). Criminal Code, R.S.C. 1985, c. C-34, §6. 222(4) (Can.). Criminal Code, R.S.C. 1985, c. C-34, §7. 14 (Can.). Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, 8. 2. Justice Smith held that the Criminal Code unjustifiably infringes Sec- Justice Smith held that the Criminal B.C.). being Section 15(1) states: a medical practitioner from assist- tion 15 to the extent that it prohibits is provided in the context of a ing suicide where the assistance a “fully-informed, non-ambivalent “physician-patient relationship” to from coercion and undue influ- competent adult patient” who is “free and personally requests such assis- ence”; is not “clinically depressed” or is soon to become so”; has tance; is “materially physically disabled disease or disability”; is in “a state been diagnosed with a “serious illness, with no chance of improvement”; of advanced weakening capacities as determined by treatment who has an illness that is “without remedy” and the illness is causing “enduring options “acceptable to the person,” that is “intolerable” to that person physical or psychological suffering” medical treatment “acceptable to and which cannot be alleviated by that person.” 2 of the risks shows that laws their have relaxed which jurisdictions from carefully- through avoided largely be very “can decriminalization safeguards.” well-monitored designed, \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 2 7-MAY-14 15:32 infringes Section 7 in two additional respects.infringes Section 7 in two additional It infringes that section provides: aiding, or abetting suicide, whether suicide ensues or not, with impris- ensues or not, with whether suicide abetting suicide, aiding, or years. up to fourteen onment for not affect the him and that such consent does death inflicted upon may be inflicted. of any person by whom death criminal responsibility that a person commits homicide when, directly or indirectly, by any or indirectly, when, directly commits homicide that a person of a human being, causes the death means, he provides that culpable homicide is murder, manslaughter or infanti- homicide is murder, manslaughter provides that culpable cide. 34929-nde_28-1 Sheet No. 6 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 6 34929-nde_28-1 34929-nde_28-1 Sheet No. 7 Side A 05/07/2014 15:37:06 3 at id. a judg- , the House of 18 the Supreme Court 20 Rodriguez v. British Colum- Rodriguez v. British In short, the judge held In short, the judge 13 12 However, Justice Smith thought that a However, Justice 14 This clearly goes beyond assisting a patient goes beyond assisting This clearly 11 , and that the decision of the Supreme Court in , and that the decision of the Supreme 16 , and that she was therefore free to reconsider the , and that she was A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT The plaintiffs defined “consensual physician-assisted “consensual defined plaintiffs The 10 Rodriguez , [1993] 3 S.C.R at 581. at para. 1387-91. , [2012] B.C.S.C. at para. 1001–03. Rodriguez at para. 1399. at para. 1393b. at para. 23. and irremediably ill” see For their definition of “grievously the Supreme Court of the United States, the Supreme Court of the United Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 See id. the European Court of Human Rights, ` 17 a vu? Indeed. Canada years ago the Supreme Court of Twenty See Rodriguez Carter Id. Id. Id. Canada’s appeal was allowed by the British Columbia Court of Canada’s appeal was allowed by the ´ 19 ej 15 D law, this Article offers Prescinding from issues of constitutional of Justice Smith The Article maintains that the judgment 19. R. (Pretty) v. Dir. of Pub. Prosecutions, [2001] U.K.H.L. 61, [2002] 1 A.C. 800 18. 16. Carter v. Canada (Att’y General), [2013] B.C.C.A. 435 (B.C., Can.). 17. 12. fully-informed, non-ambiva- The judge narrowed the definition to “competent, 13. 14. Rodriguez v. British Columbia15. (Att’y General), [1993] 3 S.C.R. 519 (Can.) 11. 10. , albeit by a bare majority. , albeit by a bare (1997). (Eng.). para. 24. influence and clinical depression and who lent adult persons” who were free from undue to require “grievously and irremediably ill” personally requested physician-assisted death; capacities, with no chance of improve- persons to be in “an advanced state of weakening and the provision of assistance by non- ment”, and to exclude “psychosocial suffering” physicians. ment which is out of line with decisions of the Supreme Court of ment which is out of line with decisions Canada, 2014] to or is soon disabled physically not “materially is if the patient even physician- “consensual that it prohibits extent to the so” and become death.” assisted \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 3 7-MAY-14 15:32 rejected a right to physician-assisted suicide in rejected a right to bia of disproportionality had Appeal, which held that no new principle emerged since of Justice Smith, criticisms which four key criticisms of the judgment were not made by the Court of Appeal. These criticisms remain valid is to be heard by the Supreme and relevant, particularly as the case Court of Canada. that case was binding. death” as involving “the administration of medication or other treat- medication or other of involving “the administration death” as act of a death by the about a patient’s intentionally brings ment that . . .” medical practitioner. to commit suicide and includes the active, intentional ending of a intentional ending the active, suicide and includes to commit euthanasia. voluntary, active life, in other words, patient’s plain- The adopted by the judge. tiffs’ definition was that fresh disproportionality had since emerged, new principle of was available, from jurisdictions with relaxed laws empirical evidence from that of the of some of the plaintiffs differed that the situation plaintiff in issue. that the Code’s prohibitions on both physician-assisted suicide and on on both physician-assisted that the Code’s prohibitions infringe the Charter.voluntary euthanasia the effect of She suspended to enact legisla- one year to allow Parliament time her declarations for accommodate her ruling. tion which would Lords, 34929-nde_28-1 Sheet No. 7 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 7 34929-nde_28-1 34929-nde_28-1 Sheet No. 7 Side B 05/07/2014 15:37:06 at Id. [Vol. 28 THICS OF ISTORY OF intention- E H “is not consistent AW AND ONCISE L HE Carter IFE , A C , T L EOWN OWBIGGIN UMAN 304 (2012). K , the principle has long been D IFE H OHN AN L ETHICS & PUBLIC POLICY UMAN H LAW, at 145; J Id. NVIOLABILITY OF , Chief Justice Denham noted that I The principle has historically been referred to as The principle has historically been note 22, at chapter 1. HE NVIOLABILITY OF I 24 Fleming supra I. T , 25 Airedale N.H.S. Trust v. Bland —and of expert majority of the vast the conclusions with 23 EOWN K 21 SSAYS ON THE 80–82 (2007). In the UK, from 1936 to 2009, Parliament has rejected a suc- NOTRE DAME JOURNAL OF ; See : E whether voluntary euthanasia could safely be decriminalized—could safely euthanasia voluntary whether 22 The principle of the inviolability of life is a fundamental principle The principle of the inviolability of The Article considers four of the judgment’s central flaws: of the judgment’s considers four The Article the fundamental appreciate and affirm accurately to 1. Its failure 2. Its holding that the prohibition on assisting suicide discriminates the prohibition on assisting suicide 2. Its holding that inviolability important argument that, once the 3. Its evasion of the of jurisdictions with 4. Its erroneous finding that the experience 23. Carter v. Canada (Att’y General), [2012] B.C.S.C. 886, para. 10 (Can. B.C.). 24. 25. Airedale N.H.S. Trust v. Bland, [1993] A.C. 789, 863-64 (H.L.) (Eng.). 22. The Voluntary Euthanasia Legalisation Society was founded in the UK in 1935 20. Rep. 1 (2002). Pretty v. United Kingdom, 35 Eur. Ct. H.R. 21. Fleming v. Ireland, [2013] I.E.S.C. 19 (Ir.).of the Delivering the judgment ending the lives of patients (euthanasia) and, on the other, treat- of patients (euthanasia) and, on the ending the lives foreseen EDICINE UTHANASIA is seriously defective. is seriously para. 74. and the Euthanasia Society of America in 1938. I with many judgments from supreme and constitutional courts of other nations.” with many judgments from supreme and constitutional cession of proposals to relax the law. E M Irish Supreme Court in 4 of Ireland \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 4 7-MAY-14 15:32 of the common law. legal principle of the inviolability of human life, a principle which has life, a principle which of human of the inviolability legal principle the one hand, line between, on provided a bright historically ally because and the withdrawal of treatments ment aimed at palliation, shortening of life excessively burdensome, where the they are futile or is committees and legislatures which have considered, across seventy-five across considered, have which legislatures and committees years, recognized in most, if not all, civilized societies throughout the modern recognized in most, if not all, civilized of the European Convention on world as is evident from Article 2 Covenant on Civil and Human Rights and Article 6 of the International Political Rights. the “sanctity of life,” but as this Article is concerned with a philosophi- the “sanctity of life,” but as this Article the phrase “inviolability of life” cal, rather than a theological principle, theological connotations.will be used to avoid any distracting As Lord Goff noted in against those physically unable to commit suicide; against those physically euthanasia, by the endorsement of voluntary principle is abandoned of non-voluntary logically entails the endorsement such endorsement patients the intentional termination of incompetent euthanasia (that is, with advanced dementia); and like infants or those of decriminalization “can be very relaxed laws shows that the risks well-monitored largely avoided through carefully-designed, safeguards.” 34929-nde_28-1 Sheet No. 7 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 7 34929-nde_28-1 34929-nde_28-1 Sheet No. 8 Side A 05/07/2014 15:37:06 5 27 He 28 30 The House of The House 26 Delivering the judgment of the majority, Justice Delivering the judgment of the majority, 29 . A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT Rodriguez at 606. Id. The judgment of Justice Smith fails, however, to exhibit an accu- Justice Smith fails, however, to exhibit The judgment of been a clear of the judgment should have The starting point The key distinction between intending, and merely foreseeing, the The key distinction between intending, The principle is grounded in an understanding of each human of each an understanding in is grounded principle The 26. not unrelated to, the prohibi- The inviolability of life is distinct from, though 27. on Medical Ethics, H.L. Paper House of Lords, Report of the Select Committee 28. an effect that is not intended, Here and throughout, “side-effect” denotes 29. Rodriguez v. British Columbia (Att’y General), [1993] 3 S.C.R. 519 (Can.). 30. tion on intentional interference with a person’s bodily integrity, a prohibition some tion on intentional interference with a person’s describe as protecting bodily ‘inviolability’. No. 21-I, para. 237 (1994). whether as end or as means.effect’s being intended rather than a side- Moreover, an it can be foreseen as certain: walking effect (or vice versa) has nothing to do with whether in shoes is foreseen as certain to wear down their soles but—save where someone has some purpose of wearing them down, such as to win an unusual bet—is not intended to do so, and so is a mere side-effect. For the same reason, what in some or many cases is a side-effect may be not a side-effect; that is, when the acting person intends the effect, he or she chooses it as a means or perhaps as an end (that is, for its own sake). 2014] the law should central to the question whether The principle is clearly the crime voluntary, active euthanasia (currently be relaxed to permit crime of assist- suicide (currently the of murder) and physician-assisted ing suicide). its foundational of the principle; to recognize rate understanding a reasoned law; to provide anything approaching importance in the cannot logically it; and to appreciate that its rejection case for rejecting circumstances her judgment adumbrates. be confined to the shaped that historically the law has been profoundly acknowledgment of the life of each human being by recognition of the intrinsic worth to intentionally kill innocent and the principle that it is always wrong in unjust aggression).human beings (that is, those not involved The that, while this principle rules judgment should also have made clear it permits the palliation of symp- out euthanasia and assisting suicide, or excessively burdensome treat- toms, and the withdrawal of futile is foreseen as a side-effect. ments, even if the hastening of death \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 5 7-MAY-14 15:32 hastening of death was clearly endorsed by the Supreme Court of hastening of death was clearly endorsed Canada in being as having an intrinsic and ineliminable dignity. ineliminable and an intrinsic as having being of essence The life, human taking of on the intentional is the prohibition the principle purpose. sense of aim or used in its ordinary intention Sopinka rejected the argument that assisting suicide was similar to the Sopinka rejected the argument that at the patient’s request. withdrawal of life-preserving treatment also rejected the argument that the distinction between assisting suicide also rejected the argument that the even more attenuated in the case and accepted medical treatment was to hasten death.of palliative treatment which was known He observed: Lords Select Committee on Medical Ethics (one of the several expert (one of the several Medical Ethics Committee on Lords Select case for and rejected, the examined, which have carefully committees killing on intentional the prohibition euthanasia) described voluntary “protects which and of social relationships” of law as “the cornerstone all are equal.” embodying the belief that each one of us impartially, 34929-nde_28-1 Sheet No. 8 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 8 34929-nde_28-1 34929-nde_28-1 Sheet No. 8 Side B 05/07/2014 15:37:06 evi- to [Vol. 28 equivalent The distinc- Chief Justice 34 33 , 32 Moreover, a physician who Moreover, a physician The law, he continued, had 31 Vacco v. Quill 35 37 , Lord Scarman noted that in ETHICS & PUBLIC POLICY LAW, The same is true when a doctor administers The same is true when a doctor 36 could have been clearer, the case does uphold the distinction at 586 (referring to suicide as involving a “choice of death over at 586 (referring to suicide as involving a “choice Hancock and Shankland read as a whole that it affirms the distinction between intention and Woollin 38 In Woollin at 802. R. v. Moloney [1985] A.C. 905 (H.L.) (Eng.); R. v. Hancock & Shankland at 802–03. at 801. at 800–01. at 607. 39 NOTRE DAME JOURNAL OF See Id. Id. Id. Id. Id. Id. See also id. Id. from which intention may be inferred, it is not from which intention may be inferred, Similarly, the Law Lords have distinguished between an intention Similarly, the Law Lords have distinguished [T]he distinction drawn here is one based upon intention upon intention based here is one drawn distinction [T]he – in the the which has pain, is to ease intention care the of palliative case the suicide, of assisted the case while in death, of hastening effect death. is undeniably to cause intention and in fact on intent are important, distinctions based In my view, the distinction law. While factually basis of our criminal form the clear. draw, legally it is be difficult to may, at times, 39. 38. 36. 37. 33. 521 U.S. 793 (1997). 34. 35. 32. 31. Echoing Justice Sopinka, the Supreme Court of the United States has the Supreme Court of the Echoing Justice Sopinka, between intention and foresight. As the Court of Appeal has subsequently confirmed, it is clear from foresight, and that it is a misdirection for a judge to tell a jury that foresight of the virtual certainty of death amounts to an intention to kill. R. v. Matthews & Alleyne, [2003] [1986] A.C. 455 (H.L.) (Eng.); R. v. Woollin [1999] 1 A.C. 82 (H.L.) (Eng.). Although some sentences in life.”). 6 He added: and merely between trying to hasten death affirmed the distinction of death.foreseeing the hastening In \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 6 7-MAY-14 15:32 intention. dence to kill, on the one hand, and foresight of death, even as a virtual cer- to kill, on the one hand, and foresight tainty, on the other. that, while foresight may be They have held palliative drugs: even if the drugs hasten death “the physician’s purpose palliative drugs: even if the drugs hasten his patient’s pain,” unlike the phy- and intent is, or maybe, only to ease sician whose purpose is to assist suicide. withdraws life-sustaining treatment “purposefully intends, or may so withdraws life-sustaining treatment wishes” and to cease doing futile intend, only to respect his patient’s things to the patient. long used the actor’s intent to distinguish between two acts with the long used the actor’s intent to distinguish actions taken “because of” a given same result. The law distinguishes of” their unintended but foreseen end from actions taken “in spite consequences. tion, he added, comports with fundamental legal principles of comports with fundamental legal tion, he added, causation and intent. treatment, he When a patient dies after refusing lethal med- fatal disease, but if a patient ingests dies from an underlying by that medication. ication, he is killed Rehnquist, delivering the judgment of the Court, noted that the distinc- the judgment of the Court, noted Rehnquist, delivering treatment suicide and withdrawing life-sustaining tion between assisting medical profes- recognized and endorsed in the is a distinction widely is important, logical, and rational. sion and in law and 34929-nde_28-1 Sheet No. 8 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 8 34929-nde_28-1 34929-nde_28-1 Sheet No. 9 Side A 05/07/2014 15:37:06 7 40 43 Re A [2001] 42 Cf. ECISIONS CONCERN- D 54–56, 79–80 (2012). [1993] AC 789, OODS EDICAL G M : UMAN THER H O Pretty morally acceptable when caused as a or may be note 22, at 11. UTHANASIA AND ORALITY AND THE ., E , M supra , Airedale NHS Trust v Bland Airedale NHS Trust OBO -L EOWN AAS ET AL A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT ´ M OMEZ 11 (1992). G [1986] A.C. at 471. 44 IFE L ., H.L., (5th ser.) (1997) 743–44 (UK). For a brief introduction to double VAN DER 41 at 472. , Lord Goff observed that it was lawful for a doctor to adminis- , Lord Goff observed EB LFONSO ND OF Hancock, Id. the House of Lords had made it “absolutely clear that foresight clear it “absolutely made Lords had House of the ING THE . D E In light of the endorsement of the distinction between intention In light of the endorsement of the ARL Bland 867D, per Lord Goff of Chieveley. This principle entails a distinc- and intending it . . . . tion between foreseeing an outcome the established rule that a doctor may, when caring for a patient that a doctor may, when caring for the established rule pain-kill- dying of cancer, lawfully administer who is, for example, effect fact that he knows that an incidental ing drugs despite the will be to abbreviate the patient’s life. of that application may be effect principle medical treatment Under the double it ill person to alleviate pain although administered to a terminally may hasten death: Foresight does not necessarily imply the existence of intention, imply the existence does not necessarily Foresight with all the which when considered may be a fact from though it the necessary think it right to infer a jury may other evidence intent. 44. P.J. 42. 789, 867 (H.L.) (Eng.). Airedale N.H.S. Trust v. Bland, [1993] A.C. 43. R. (Pretty) v. Dir. of Pub. Prosecutions, [2001] U.K.H.L. 61, para. 55 [2002] 1 40. 41. The distinction between intending and foreseeing death is also The distinction between intending In A.C. 800 (Eng.). of “double effect” holds that an effect that The ethical principle or idea that do or may well differ from the rules is intended is subject to moral and legal rules a kind that is morally and/or legally culpa- applicable to a side-effect, so that an effect of ble when caused as an intended effect is ter drugs to ease pain even if the doctor foresaw that they would have pain even if the doctor foresaw that ter drugs to ease death.the effect of hastening His Lordship referred to: foreseen side-effect. a bad effect is merely foreseen: there must (It is not sufficient that conduct which foreseeably brings about a also be a sufficiently serious reason to justify bad consequence.) was also defended by the House of Lords Select The principle or idea the case for legalizing voluntary euthana- Committee on Medical Ethics, which examined sia. on Medical Ethics, H.L. Paper No. House of Lords, Report of the Select Committee 21-I, para. 242–44 (1994). Defending the principle or idea in debate in the House of Lords, Lord Williams of Mostyn Q.C., Parliamentary Under-Secretary of State at the Home Office (and later Attorney General), rejected the argument that double effect was sophistry and that the law was difficult or obscure. The law was, he said, “perfectly plain.” 583 P effect, see A EWCA (Crim) 192, [2003] 2 Criminal Appeal Reports 30, at [43]-[44]. EWCA (Crim) 192, [2003] 2 Criminal Appeal Fam 147, discussed in K Lord Goff was echoed by Lord Steyn in Lord Goff was echoed of legalized euthanasia.endorsed by the Dutch, the pioneers In the an intention to kill, not merely fore- Netherlands, “euthanasia” requires sight of death. 2014] Moloney of intent.” existence of the evidence more than is no of consequences its weight and be considered, must foresight stated that His Lordship case, adding: the evidence in the together with all assessed, \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 7 7-MAY-14 15:32 and foresight by the highest authorities in Canada, the United States, and foresight by the highest authorities Smith should have conflated and England, it is surprising that Justice 34929-nde_28-1 Sheet No. 9 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 9 34929-nde_28-1 34929-nde_28-1 Sheet No. 9 Side B 05/07/2014 15:37:06 at of Id. see supra [Vol. 28 Rodriguez that Justice to cause the 48 merely foreseeing , had acknowl- at para. 38. She also at para. 225; Id. Id. —that is, humanly— with intent Rodriguez 50 that the criminal law does not law does the criminal that , [2012] B.C.S.C. at para. 37–38; para. problems which may exist in problems which ETHICS & PUBLIC POLICY 46 51 kill the patient, how can the for- how can the kill the patient, The Double Effect of Pain Medication: Separat- LAW, See Carter . 315 (1998). ED it will cause the patient to suffer nausea they will as a side-effect shorten life, and as a side-effect shorten they will evidential M S.A. Fohr, in order to No less surprisingly, counsel for the Attorney for counsel surprisingly, No less was not a criminal case. was not a criminal However, although 45 conceptual and psychologically foreseeing foreseeing See, e.g., ALLIATIVE , “[I]t has been clear that potentially life-shortening symptom , “[I]t has been clear that potentially life-shortening bring about a bad consequence and bring about a bad consequence and , 1 J. P Rodriguez note 43. is evident in Justice Further, the importance of intention distinction, a distinction which explains why administer- distinction, a distinction Rodriguez However, the real 49 at para. 328. at para. 327. at para. 330. at para. 329. that trying to NOTRE DAME JOURNAL OF was concerned with Charter issues, it considered them in rela- Charter issues, it considered them was concerned with was clearly focused on a legal, rather than a factual or ethical, on a legal, rather than a factual or was clearly focused Id. Id. Id. See supra Id. 47 and Moreover, this key legal the ethical distinction distinction tracks Justice Smith sought to explain away the affirmation in to explain away the affirmation in Justice Smith sought 50. palliative drugs, properly titrated, The evidence of palliative care experts is that 48. 49. 47. 51. 45. 886, para. 328 (Can. B.C.). Carter v. Canada (Att’y General), [2012] B.C.S.C. 46. factual do not in fact shorten life. ing Myth from Reality note 32. She also states that “the law in Canada” lets physicians legally administer medica- tions even though they know that the doses of medication in question may hasten death, “so long as the intention is to provide palliative care by easing the patient’s pain.” para. 231(c). Smith’s own “euthanasia,” “palliative care,” and “palliative definitions of “assisted suicide,” sedation” set out early in the judgment. relief is permissible where the physician’s intention is to ease pain.” and cites the passage from Justice Sopinka’s judgment in that case where he notes that distinctions based on intention are important and form the basis of the criminal law. states that, since 41–42. “the intentional termina- For example, Justice Smith uses “euthanasia” to mean or someone acting under the direction of a tion of the life of a patient by a physician, reasons.” physician, at the patient’s request, for compassionate 8 foresight. and intention \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 8 7-MAY-14 15:32 tion to the crime of assisting suicide.tion to the crime of Justice Smith added between Rodriguez determining a defendant’s intention have scant bearing on the reality intention have scant bearing determining a defendant’s the and importance of that one’s conduct will do so. for example, administering Between, chemotherapy merely and hair loss, and administering chemotherapy ing morphine with intent to ease pain, merely foreseeing the shorten- ing morphine with intent to ease pain, by professional medical ethics, ing of life, is lawful and endorsed intent to shorten life is murder whereas administering morphine with ethics. and rejected by professional medical patient to suffer nausea and hair loss. General of Canada did little to help the judge from falling into this into from falling judge help the little to did of Canada General error. counsel submitted Remarkably, appear to recognize the distinction between intention and foresight. between recognize the distinction appear to If, between administering draws no distinction the criminal law however, pain, drugs to palliate a lethal drug administering unlawful? and the latter mer be lawful on the intended and foreseen consequences the distinction between ground Sopinka, delivering the majority judgment in Sopinka, delivering and that of drawing a bright-line factual distinction, edged the difficulty Rodriguez distinction. 34929-nde_28-1 Sheet No. 9 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 9 34929-nde_28-1 34929-nde_28-1 Sheet No. 10 Side A 05/07/2014 15:37:06 9 52 . Rod- An just is 53 has much 55 R. v. Chartrand As reflection on the ordinary case of theft As reflection on the ordinary case of 56 A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT , [1994] 2 S.C.R. at 870-73. A further appeal to the Supreme Court of Canada was to the Supreme Court of Canada A further appeal 54 at 873-74. of the owner’s loss but only of their own gain does not mean of the owner’s loss but only of their Id. Chartrand between intending and merely foreseeing death. foreseeing merely and intending between to It appears Oddly, Justice Smith omitted to disclose the authority she relied she the authority disclose to Smith omitted Justice Oddly, Before examining the Supreme Court’s judgment, we should Before examining the Supreme were misguided, confused by The judgments of the Ontario courts think 55. Criminal Code, R.S.C. 1985, c. C-46, §56. 281 (Can.). Criminal Code, R.S.C. 1985, c. C-46, § 322(1) (Can.). 54. 52. R. v. Chartrand, [1994] 2 S.C.R. 864 (Can.). This was the authority cited to the 53. author by counsel for the Attorney General of Canada, Ms. Donnaree Nygard, in an email author by counsel for the Attorney General of email of 10 February asking what authority dated 12 February 2014, in response to an Canadian criminal law equated the foreseen counsel had in mind when submitting that hastening of death with the purposeful hastening of death. I am grateful to Ms. Nygard for confirming my suspicion that this was the relevant authority. Emails on file with the author. 2014] under abducting a person was charged with in that case The defendant the Criminal Code. to section 281 of fourteen contrary the age of The person guardian, or not being a parent, that anyone section provides takes the who unlawfully charge of a child lawful care or having the possession of the to deprive” such a person of the child “with intent offense.child is guilty of an from a school- The defendant took a child telling the child’s companions protested, without yard, although the he was taking the child.companions where the child three He took of the schoolyard in a car and took photographs kilometers from the child. for father did not know of the child’s whereabouts The child’s up to ninety minutes. acquittal. The trial judge directed an \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 9 7-MAY-14 15:32 upon to reject the clear distinction made by the Supreme Court in Court in by the Supreme made distinction the clear to reject upon riguez Court: of the Supreme a later decision have been allowed and a new trial ordered. allowed and a new contrary to Section 281 notice that the offense of abduction and side-effect; rather, even that the owner’s loss is a mere consequence intent looked at from different in such a case, it is one and the same loss; intention of one is intention angles. The thief’s gain is the owner’s gain save by means of depriving of the other; the thief cannot get his the owner. achieve his unlawful control Similarly, the abductor cannot the parents of such control over the child save by means of depriving and possession. intended consequence as a merely a merely sophistical labeling of an foreseen consequence. case is far removed indeed from This sort of other of two different intentions: administering analgesics with one or easily shows, the thief’s intent to get the thing, temporarily or not, easily shows, the thief’s intent to get and the fact that some thieves do the intent to deprive the owner of it, not the same logic as ordinary cases of theft contrary to Section 322(1) of the same logic as ordinary cases of to deprive, temporarily or abso- the Code: taking a thing “with intent lutely, the owner of it . . . .” appeal to the Court of Appeal of Ontario was dismissed on the ground of Appeal of Ontario was dismissed appeal to the Court instructed, could evidence on which a jury, properly that there was no of possession of an intent to deprive the parents find that there was their child. 34929-nde_28-1 Sheet No. 10 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 10 34929-nde_28-1 34929-nde_28-1 Sheet No. 10 Side B 05/07/2014 15:37:06 . [Vol. 28 , a case on the “wilful” pro- ETHICS & PUBLIC POLICY a person who foresees that a conse- , LAW, R. v. Buzzanga . at 888. Id The judge stated that general principles of The judge stated that general principles 57 as a general rule ´ e): The passage reads (with emphases supplied by Jus- The passage reads (with emphases 58 , [1994] 2 S.C.R. at 890. , [1994] 2 S.C.R. at 869. It was clear that “possession” was not limited His intention encompasses the means as well as to his ultimate His intention encompasses the means as well 59 simultaneously enjoy the rights to exclusive possession. simultaneously enjoy . NOTRE DAME JOURNAL OF applied to “with intent to” and it was “sufficient that the taker applied to “with intent to” and it was Chartrand Chartrand cannot Delivering the judgment of the Supreme Court, Justice L’Heureux- Delivering the judgment of the Supreme ´ I agree . . . that, quence is certain or substantially certain to result from an act which he quence is certain or substantially certain intends that consequence does in order to achieve some other purpose, moral certainty of the con- The actor’s foresight of the certainty or compels a conclusion that if sequence resulting from his conduct it, then he decided to he, none the less, acted so as to produce to achieve his ultimate bring it about (albeit regretfully), in order purpose. objective e stated that the issue was whether the intent required by Section e stated that the issue was whether 58. R. v. Buzzanga & Durocher [1979] 49 C.C.C. (2d) 369, 384-85. (Ont. Can.). 59. 57. to circumstances in which the parent or guardian was actually in physical control of the child at the time of the taking. 10 pain. or to ease life, to shorten how much of calculation The doctor’s or on his depending route, a different follows to administer analgesic calculation of the the result case when the rare even in her purpose, coincides. thief’s or the abductor’s exists in the No such difference are in or parents’ loss gain and the owner’s in which his “calculations,” the loss. his attention from even if he averts lockstep, Supreme The did so in right result, but the indubitably Canada thus reached Court of inappro- the sophistry and to identify clearly way, failing a rather clumsy intention and Ontario courts’ distinction between priateness of the of plain theft which would make nonsense consequences, a distinction his own atten- the wrongdoer is resolutely diverting in those cases where entails and that his gain (the focus of his attention) tion from the loss as part of what not as a side-effect of the gain but imposes on the owner, is quite different needs as a means. To repeat: this the thief intends and pain relief needs where the doctor who intends only from the situation of hasten- in a quantity that has the side-effect to administer analgesics ing death. needed for pain of death in such a case is not The hastening But the owner’s of itself does not promote that relief. relief, and in and it—owner the thief’s gain, and does promote loss is needed for and thief \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 10 7-MAY-14 15:32 Dub be broad in order to promote the 281 should, as the Crown submitted, or instead restrictive, as the section’s purpose of protecting children, respondent submitted. motion of hatred. mens rea would be certain or substan- knows or foresees that his or her actions or guardians being deprived of the tially certain” to result in the parents ability to exercise control over the child. She cited a passage from the judgment of Justice Martin in tice L’Heureux-Dub 34929-nde_28-1 Sheet No. 10 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 10 34929-nde_28-1 34929-nde_28-1 Sheet No. 11 Side A 05/07/2014 15:37:06 11 68 , Keeg- Steane that “inno- 64 ) of the Criminal Code ) of the Criminal 63 ‘Intent’ seems to have been that this definition of intent of this definition that 60 128–30 ed., 1987). (2d It seems futile for criminal law of the English Court of Appeal in Court of Appeal of the English AW L ´ e went on (having noted e went on (having Our courts are, as we shall soon explore, dictum 66 RIMINAL ´ e continued C the same court “examined the possibility” that possibility” the “examined same court the 65 : 62 ANADIAN though she also noted authorities, such as though she also noted authorities, such A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT 67 Olan , C ´ e, been examined by the Canadian Government in its e, been examined by the Canadian of a crime by including recklessness; quite another to do so by artifi- , [1994] 2 S.C.R. at 891–92. It is, of course, one thing for courts to , [1994] 2 S.C.R. at 891. TUART is rather artless for, as the discussion above of theft and as the discussion above of theft is rather artless for, S at 893. This being so, the debate as to the meaning of intent will This being so, the debate as to the mens rea ON Chartrand Id. Id. Chartrand and that in and : dictum Justice L’Heureux-Dub Justice increasingly prepared to extend mens rea to wider concepts of states of increasingly prepared to extend mens rea mind. often be totally irrelevant. to enter the unfathomable depths of the philosophical debate as to enter the unfathomable depths of to the meaning of ‘intent’. construed in a loose colloquial sense of actual desire, end, purpose, aim, construed in a loose colloquial sense of actual actual knowledge, for example, objective or design and knowledge to mean of the contents of the package possessed. The Code provides no general definition of intent and our courts The Code provides no general definition gap. have not found it necessary to fill the Generally, the primary objective of fraudsmen is to advantage of fraudsmen the primary objective Generally, themselves.secon- that results to their victims is The detriment and incidental.dary to that purpose only in the It is ‘intended’ that is contemplated outcome of the fraud sense that it is a perpetrated. 61 67. 66. 60. 61.(Can.). R. v. Keegstra, [1990] 3 S.C.R. 697, 774-75 62. R. v. Olan, [1978] 2 S.C.R. 1175 (Can.). 63. deceit, falsehood or other fraudu- Section 380(1) provides: “Every one who, by 64. 65. D , The difficulties of defining and proving intent had, added Justice The difficulties of defining and extend the cially and problematically stretching the ordinary meaning of ‘intention.’ L’Heureux-Dub Criminal Code.white paper on amendment of the The white paper, proposed that intention should like Professor Glanville Williams, broadly, awareness that a conse- include not only purpose but, more quence will occur, within the meaning of this Act, defrauds lent means, whether or not it is a false pretence or not, of any property, money or valuable the public or any person, whether ascertained offence.security or any service” is guilty of an indictable Criminal Code, R.S.C. 1985, c. C-46, § 380(1) (Can.). This and the intent the fraudster’s gain is the victim’s loss, abduction shows, fraudster/thief/ intent to impose loss, even if the to gain involves the his intention. not to attend to the full content of abductor contrives In L’Heureux-Dub any event, Justice 2014] \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 11 7-MAY-14 15:32 “intent” under Section 338 (now Section 380 Section 338 “intent” under may encompass a contemplated outcome distinct from the purpose of from the purpose outcome distinct a contemplated may encompass and adopted the the conduct Allsop was subsequently approved by the Canadian Supreme Court in Court Supreme the Canadian by approved was subsequently stra cent motive or purpose,” while relevant, is not dispositive of the ques- while relevant, is not dispositive cent motive or purpose,” Don Stuart’s quote (again supplying the emphases) tion of intent) to Law Canadian Criminal 34929-nde_28-1 Sheet No. 11 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 11 34929-nde_28-1 34929-nde_28-1 Sheet No. 11 Side B 05/07/2014 15:37:06 II 184 [Vol. 28 whether a OLUME V . We should SSAYS It does not follow was not concerned E 72 Buzzanga OLLECTED the precise question is unsatisfactory in several Buzzanga : C ETHICS & PUBLIC POLICY was not even concerned with a ,” does not undermine the distinct itself, DENTITY I Chartrand LAW, was, by contrast, concerned with the was, by contrast, mens rea Buzzanga 74 it begins with two qualifications, one of it begins with two qualifications, Chartrand 75 She concluded that the element of intent in of intent element that the concluded She Chartrand ´ e, , her Ladyship was surely mistaken., her Ladyship Justice NTENTION AND 69 was formulated in terms of “intent.” It concerned , I INNIS was thought by Justice Smith to be an authority for was thought by Justice , [1994] 2 S.C.R. at 894. , [1979] 49 C.C.C. (2d) at 384–85. F Rodriguez mens rea OHN Such linguistic looseness, which is obviously even greater in Such linguistic looseness, which is obviously J It would be “rare indeed” that that deprivation of possession that that deprivation be “rare indeed” It would at 894-95. 71 NOTRE DAME JOURNAL OF 73 70 Buzzanga See Id. Id. Chartrand Chartrand As for the passage from the judgment of Justice Martin quoted by As for the passage from the judgment Moreover, the reasoning in If 74. Section 229(a)(1) of the Code provides that it is murder to cause the death of 75. 72. R. v. Buzzanga & Durocher, [1979] 49 C.C.C. (2d) 369. 73. 70. 71. 68. R. v. Steane [1947] K.B. 997. 69. (2011). another human being and to “mean to” cause death, a clear requirement of purpose. Criminal Code, R.S.C. 1985, c. C-46, § 229(a)(1) (Can.). 12 way. the other going \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 12 7-MAY-14 15:32 further respects. and uncritically on the passage First, it relies heavily Martin in lifted from the judgment of Justice Justice L’Heureux-Dub Sopinka carefully considered and answered Sopinka carefully intended foresaw the hastening of death therefore doctor who merely was, moreover, of the argument to the contrary it, and his consideration careful and thorough. entirely different of “intent” in relation to an statutory meaning offence—theuse of the term in a con- meaning to be attributed to the or elided with far (in the court’s view) be equated text where it could mind,” and as “wilfully” or even “with a guilty wider concepts such and con- analysis) the distinction between intention where (on a better sophistical. sequences is uniquely artificial, indeed of a child from the parents or guardians was not the intent of the was not the intent or guardians from the parents of a child achieved, were to be of the section act, but if the purpose impugned must be of the end result near certainty of the certainty or foresight sufficient. foreseeing death between intending and rejecting the distinction affirmed in begin by noting that, like relation to “wilfully” or “with to achieve, either as an end or reality of intention as, precisely, seeking as a means. murder in Canadian law clearly Further, the crime of requires proof of intention. with the law of homicide. crime whose against an identifiable group the crime of “wilfully” promoting hatred Criminal Code. contrary to Section 281.2(2) of the Section 281 must be interpreted in the broader way so as to give the as to give way so broader in the be interpreted 281 must Section the social intent and its legislative with consistent a meaning section context. that “wilfully” in a statute means the same as “intentionally.”that “wilfully” in a statute means the Moreover, often used more broadly than “with in common idiom “intentionally” is that is, not by mistake or intent” so as to mean “not unintentionally,” accident. 34929-nde_28-1 Sheet No. 11 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 11 34929-nde_28-1 34929-nde_28-1 Sheet No. 12 Side A 05/07/2014 15:37:06 ) 79 13 82 The ´ e. The Hyam 77 . 30 (1988). EV , 104 L. Q. R ´ e fails to recognize not 76 ´ e) that an agent’s intention e) that an agent’s Before embracing a defini- 78 , and has (as we noted above Nor has it escaped heavyweight aca- 83 Hyam 81 ´ e. note 73, at Part Three, especially chapter 10, “Intention and A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT The Mental Element in the Crime of Murder supra 84 , , [1994] 2 S.C.R. at 890. , [1979] 49 C.C.C. (2d) at 383–84. , [1979] 49 C.C.C. (2d) at 383. text accompanying notes 39-41. INNIS F at 384. Justice Martin then enunciated the passage that was quoted by Justice Martin then enunciated the See Chartrand See supra Buzzanga Buzzanga Id. 80 The judgment of Justice L’Heureux-Dub Further, Justice Martin, in the pages of his judgment leading up to Further, Justice Martin, in the pages (assuming without deciding that there may be cases in which that there may without deciding (assuming which it is the confined to those consequences are intended bring about). purpose to actor’s conscious 83. Lord Goff, 84. 81. 82. 79. Hyam v. Director of Public Prosecutions [1975] A.C. 55. 80. 77. R. v. Chartrand, [1994] 2 S.C.R. 864, 89078. (Can). 76. Side-Effects”. only the confusion in that passage but also the outdated nature of the only the confusion in that passage it.discussion of intention which precedes The English law of murder has come a long way since excised—and insignificant—qualification not reads: that foresight of death as highly probable was equivalent to an intention that foresight of death as highly probable to kill. 2014] Justice L’Heureux-Dub by ellipsis inserted by an is excised which intention of foresight with the equation qualification limits The second rule.”to “a general to was not purporting Justice Martin Therefore, in all cases. with intention foresight of certainty equiparate Moreover, a model of clarity.the passage is hardly ends, means and It confuses foreseen consequences. achieve some It speaks of acting “in order to (in a sen- “so as to produce it,” and concludes other purpose;” acting by Justice L’Heureux-Dub tence emphasized objective.” means as well as to his ultimate “encompasses the \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 13 7-MAY-14 15:32 Justice L’Heureux-Dub demic criticism. tion extending to foresight of certainty, he cited authorities including tion extending to foresight of certainty, of the House of Lords in Glanville Williams, and the decision rejected the conflation of foresight and intention.rejected the conflation of foresight Glanville Williams’ been judicially rejected.notion of “oblique” intent has, then, Lord in his signal paper on the mental Goff also extrajudicially rejected it element in the law of murder. passage is correct that one intends not only one’s end but also the that one intends not only one’s passage is correct to bring about that end.means one chooses is hardly sound But this authority for—indeed, it tells against—the proposition that one also or means may or consequences which one’s end intends those foreseen will produce as side-effects—“side-effects” because neither precisely ends, and thus not intended.ends nor means to passage thus dis- The intention and is weak authority for conflating closes serious confusion in relation to murder. with foresight, either in general or the meaning of intention had been the quoted passage, recognized that disagreement, and that there was the subject of academic and judicial authority that it was limited to “purpose.” 34929-nde_28-1 Sheet No. 12 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 12 34929-nde_28-1 34929-nde_28-1 Sheet No. 12 Side B 05/07/2014 15:37:06 86 It Keeg- 89 , like dictum [Vol. 28 was mis- was Olan undermines Moreover, Moreover, Allsop , that in the law of Chartrand text accompanying notes , Justice Martin had , Justice that the Supreme However, the reach of the crime and . 87 88 Keegstra. However, artificially stretching extends See supra Rodriguez Id. . if But, Buzzanga that the definition of intent of the definition that 85 Rodriguez ETHICS & PUBLIC POLICY for the crime of conspiracy to R. v. Allsop. LAW, at 774. He added that the Law Reform Commis- R. v. Keegstra R. v. Id. ´ e observed further mens rea ´ e also noted e also . thing for a court, as in Moreover, it is one may encompass a contemplated outcome dis- may encompass a , a case concerning the crime of “wilfully” concerning the , a case “examined the possibility that intent under s.338 “examined the possibility Code Rodriguez explicitly noted that in explicitly , [1994] 2 S.C.R. at 890. , [1994] 2 S.C.R. at 890. Buzzanga note 63. was approved in approved was concerned the R. v. Olan Keegstra NOTRE DAME JOURNAL OF . See supra Chartrand Chartrand was, moreover, decided before decided before was, moreover, , preceded , where members of a minority group publish hate propaganda against their own , where members of a minority group publish , to “examine the possibility” that in the law of fraud intention may possibility” that in the law of fraud intention , to “examine the Justice L’Heureux-Dub Justice Justice L’Heureux-Dub Allsop Where a person intends by deceit to induce a course of conduct in Where a person intends by deceit to induce interests in jeopardy he another which puts that other’s economic not intend or desire that is guilty of fraud even though he does 89. 87. 88. R. v. Allsop, (1976) 64 Cr. App. R. 29 (Eng.). 85. 86. R. v. Keegstra, [1990] 3 S.C.R. 697 (Can.). Justice Dickson, delivering the Chief was, like was, like Buzzanga 62–64. is liable to catch those whose purpose is solely to create controversy or agitate for reform but not to promote hatred either as an end or a means. sion of Canada favored a narrow reach on the ground that “removing an intent or pur- sion of Canada favored a narrow reach on the prosecutions of cases similar to pose requirement” could well result in successful Buzzanga agitate for reform: the Commission did not group in order to create controversy or to such individuals.think that the crime should be used to prosecute Chief Justice Dickson view. continued that he endorsed the Commission’s ‘intention’ to include ‘foresight of substantial certainty’ judgment of the court, wrote that the interpretation of “wilfully” as requiring that the judgment of the court, wrote that the interpretation foreseen as substantially certain significantly promotion of racial hatred be intended or restricted the reach of the offence. 14 Keegstra \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 14 7-MAY-14 15:32 Keegstra Olan word “intent” (though we should note that the include foresight as it now is). Section 338(1) nor Section 380(1) appears neither in in Court in taken in approving that definition, so too was so too definition, that in approving taken stra Supreme group, and the an identifiable hatred against promoting Court in the of the conduct,” and that it approved tinct from the purpose of Appeal in of the English Court (now s.380) of the (now s.380) of the a court to decide, as in is quite another for observed that “wilfully” has no fixed meaning in the criminal law. in the criminal no fixed meaning that “wilfully” has observed murder it does not. Further, it is far from clear that drawn in between intention and foresight the distinction drawn Rodriguez defraud. hire-purchase company, was con- Allsop, a “sub-broker” for a making false statements on applica- victed of that crime for dishonestly so as to induce the company to tions for the hire-purchase of cars have rejected.accept applications they might otherwise He appealed failed to direct that it was neces- on the ground that the trial judge had to cause economic loss to the sary for the Crown to prove an intention company. Court of Appeal held: Dismissing the appeal, the 34929-nde_28-1 Sheet No. 12 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 12 34929-nde_28-1 34929-nde_28-1 Sheet No. 13 Side A 05/07/2014 15:37:06 15 Rod- was Hyam at 32. quoted 92 Id. Allsop Chartrand from did go on to adopt Allsop dictum that no distinction was to Moreover, fails to realize that, gener- fails to realize that, , the same murderous intent, as a of the crime of conspiracy to of conspiracy of the crime between foresight (“contem- between foresight 94 It does not even mention Hyam is satisfied by an intention is satisfied to 93 dictum and the same nine judges sat in mens rea mens rea distinction mens rea Rodriguez of enriching themselves, even if they only advert of enriching themselves, was not such a case.that it was common The judgment states A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT states that the loss to victims of fraud “is ‘intended’ only states that the loss , [1994] 2 S.C.R. at 866–67. Allsop provides, then, anything but a clear and coherent analy- provides, then, anything but a clear But it does not follow that the But it does not follow is sound authority for equating foresight with intention. is sound authority , (1976) 64 Cr. App. R. at 32. 90 91 as a means . dictum Id Chartrand Allsop is a case on the scope of the on the scope of the is a case , let alone purport to overrule it. Chartrand actual loss should ultimately be suffered by that other in this other in by that suffered be ultimately loss should actual context. 92. 93. in relation to section 281 that, It is also puzzling that the judgment concludes 94. 91. Even if 90. Chartrand ground that the company did in fact suffer loss because it paid too much for part- ground that the company did in fact suffer their pretended value, and because deposits exchanged cars, which were worth less than paid had not in fact been paid. which had been represented as having been “[I]f the purpose of the section is to be achieved, foresight of the certainty or near cer- “[I]f the purpose of the section is to be achieved, v. Chartrand, [1994] 2 S.C.R. 864, 895.tainty of the end result must be sufficient.” R. It is foresees that they are depriving a parent or not easy to imagine a case in which someone guardian of a child without intending to do so. The quotation also raises questions about the meaning of “near certainty,” and why “near certainty” should suffice for liability but not “high probability.” Finally, is it remotely just that the law should regard a surgeon who, as a last resort, performs an extremely risky operation to try to save the life of a dying child, and who foresees that death from the operation is a “near certainty,” as having not only an unlawful state of mind, but the same man who deliberately strangles the child to death? 2014] Allsop and holds that the defraud, even if in jeopardy, her economic interests to put his or induce another loss to the victim. to cause economic further intention there is no The to the typical case—discussed then, limited crime is not, above in tan- abduction—which typical theft and dem with an intention to involves of enriching the loss to the victim as a means cause economic fraudsman. in \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 15 7-MAY-14 15:32 First, the fraud.” is a contemplated outcome of the in the sense that it This, not “intention,” can the quotation marks surrounding least because of supporting a equally be read as plation”) and intention. Second, the ally, fraudsmen very much intend the detriment to their victims, much intend the detriment ally, fraudsmen very precisely riguez decided only the year after consciously to the more seductive and vivid aspect of their intent: their more seductive and vivid aspect of consciously to the own gain.Appeal in Third, while the Court of the view expressed by Lord Diplock in the view expressed by Lord Diplock be drawn between the state of mind of one who does an act because he be drawn between the state of mind and one who does an act “desires” to produce an evil consequence produce that consequence,” “knowing full well that it is likely to is old and bad law. and is frail authority indeed sis of intention, ends, means and foresight, for conflating intention and foresight. 34929-nde_28-1 Sheet No. 13 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 13 34929-nde_28-1 34929-nde_28-1 Sheet No. 13 Side B 05/07/2014 15:37:06 [Vol. 28 ´ e, Sopinka, , a case exactly the absence of that the differ- 98 that this distinc- 96 99 at para. 315a. The prin- Id. Rodriguez to support the judge’s departure to support ETHICS & PUBLIC POLICY LAW, Carter How the right to life—the right not to 101 The judgment also referred to The judgment also 100 97 certain kinds of choice (those intended as life certain kinds of at para. 17. at para. 335, 352. at para. 171. at para. 355. excluding NOTRE DAME JOURNAL OF Id. Id. Id. Id. Are we to believe that the Supreme Court overruled itself with- itself overruled Court the Supreme that we to believe Are 95 . Not only did Justice Smith misunderstand the inviolability of life by inviolability of life misunderstand the did Justice Smith Not only Finally, the judgment of Justice Smith concluded, strangely, that Finally, the judgment of Justice Smith There is, in sum, nothing in in sum, nothing in There is, Rather than recounting the opinions of witnesses critical of the Rather than recounting the opinions 100. 101. 99. 98. 95. Forest, L’Heureux-Dub Chief Justice Lamer and Justices La 96.B.C.S.C. 886, para. 350 (Can. B.C.). Carter v. Canada (Att’y General), [2012] 97. Nor is self-defence an “exception” to the principle. from the clear ruling of the Supreme Court in Supreme Court clear ruling of the from the ciple has long been understood to prohibit the intentional killing of the innocent, not those engaged in unjust aggression; hence the legal justification of reasonable force, even if lethal, in self-defense. Gonthier, Cory, McLachlin, Iacobucci, and Major. Gonthier, Cory, McLachlin, Iacobucci, and 16 both \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 16 7-MAY-14 15:32 to death is not equivalent the hastening of that foreseeing on point, death. the hastening of intending the appeared to conflate she also foresight with intention, conflating with vitalism—thatinviolability of life doctrine calling for the is, with a life at all costs.preservation of human She claimed the prohibition on euthanasia breached the right to life of one of the the prohibition on euthanasia breached before she became too disabled plaintiffs because she might kill herself to do so without assistance. out adverting to the fact? out adverting tion had been drawn to the court’s attention.tion had been drawn to the court’s Society’s rejection of its upholding of the inviolability measures intended to shorten life, law against assisting suicide are principle and its maintenance of the that measures needed to pre- completely compatible with acceptance be omitted because they are dispro- serve life can lawfully and ethically a number of ways. portionately burdensome in any of have demonstrated a sound inviolability of life, the judgment should with a recognition of its foun- understanding of that principle together law in Canada and beyond. The dational importance to the criminal legal importance, regardless of the principle remains of foundational of particular ethicists who gave extent to which it met with the approval evidence in the case. a societal consensus “that life must always be preserved at all costs.” “that life must always be preserved a societal consensus of life with that the judge confused the inviolability This, again, suggests the judgment’s acknowledgment “vitalism,” despite ence of ethical opinion about euthanasia “is about whether the preser- about euthanasia “is about whether ence of ethical opinion exceptions.” is an absolute value, subject to no vation of human life But the preserva- inviolability of life does not require the principle of the principle excep- “subject to no exceptions”; it is a tion of human life tionlessly shortening), not a principle that of itself requires the choice of life- a principle that of itself requires the shortening), not preserving measures. 34929-nde_28-1 Sheet No. 13 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 13 34929-nde_28-1 34929-nde_28-1 Sheet No. 14 Side A 05/07/2014 15:37:06 17 102 the The did not 106 109 that in 1972 Rodriguez ? 105 at para. 926. is accurate, but not ISABLED Id. 110 D However, neither the law that the law against assisting that the law against 108 , which overlaps with the first, , which overlaps 103 the common law considered sui- the common law GAINST THE Carter 104 A at 314(d). The inviolability of life holds suicide to be seri- Id. ISCRIMINATION A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT II. D at para. 339. at para. 237. at para. 105. at para. 102. at para. 15. Indeed, it quoted the following opinion tendered by an Indeed, it quoted the following opinion Id. Id. Id. Id. Id. Id. 107 The second major criticism of major criticism The second As the judgment recognized, As the judgment 110. 109. Again failing accurately to articulate the inviolability of life, the judgment sum- 106. 107. Though it does appear to appreciate that the majority in 108. 105. 104. 102. to life against the law prohibiting And if this plaintiff is able to invoke the right 103. ously unethical. marized the ethical case against euthanasia as involving the contention “[w]hether or not suicide may be ethical.” interpret decriminalization as an endorsement of suicide. is that the judgment failed to recognize clearly (if at all) that not only (if at all) that to recognize clearly judgment failed is that the with the inviolability suicide inconsistent and assisting are euthanasia why the law so, too, is suicide itself, which explains principle, but that suicide.has consistently discouraged in the judgment This failure its mistaken holding paved the way for assisting suicide, could another plaintiff invoke it against a law prohibiting assisting assisting suicide, could another plaintiff invoke she would rather kill herself than not be female genital mutilation, on the ground that able to obtain assistance to mutilate her genitalia? 2014] killed—canbe intentionally legislation by be breached to be thought puzzling. is in self-killing assistance killing or intentional prohibiting \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 17 7-MAY-14 15:32 expert ethicist called by the plaintiffs, Professor Wayne Sumner: “The expert ethicist called by the plaintiffs, suicide] is limited to provid- role of the physician [in physician-assisted something which is itself ethically ing the means for the patient to do permissible . . . . of justifying assistance with suicide The ethical burden is discharged by justifying suicide itself.” cide to be a form of homicide.cide to be a form The judgment noted nor professional medical ethics has regarded suicide as ethical, which is nor professional medical ethics has in the view of the medical profes- one reason why it remains illegal and, suicide regardless of how autono- sion as a whole, unethical to assist commit suicide may be. mous and informed the decision to suicide discriminates against those physically unable to commit suicide. against those physically unable to suicide discriminates because both are ethical: it is accurate because both are unethical.because both are ethical: it is accurate Sig- has been consistently opposed nificantly, the World Medical Association attempted suicide was decriminalized in Canada, and it quoted was decriminalized in Canada, and attempted suicide then Minister of Justice who explained that this was done “on the phi- who explained that this was then Minister of Justice remedy, that it not a matter which requires a legal losophy that this is the law and that its solutions in sciences outside of has its roots and [sic] under the legal system is unnecessary.”certainly deterrent But the decriminalization appears clearly to recognize that judgment nowhere of suicide, let alone create a right to did not amount to an endorsement suicide. that there is no ethical dis- judge’s apparent agreement with Sumner suicide tinction between suicide and assisting 34929-nde_28-1 Sheet No. 14 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 14 34929-nde_28-1 34929-nde_28-1 Sheet No. 14 Side B 05/07/2014 15:37:06 ., cir- EB . D any [Vol. 28 ARL The mainte- Even if that is 113 114 , [2012] B.C.S.C. at para. (Oct. 2002, reaffirmed with N ’ Carter SS . A ED M ETHICS & PUBLIC POLICY ORLD LAW, , W 112 ., H.C., (4th ser.) (1960–61) 1425–26 (U.K.); 645 P EB judgment’s summary of the ethical debate states that intentionally judgment’s summary of the ethical debate states . D ARL , [2012] B.C.S.C. at para. 180. Carter , Justice Sopinka observed: 111 NOTRE DAME JOURNAL OF Carter WMA Resolution on Euthanasia [T]he decriminalization of attempted suicide cannot be said to of attempted suicide cannot be [T]he decriminalization general by Parliament or by Canadians in represent a consensus is interest of those wishing to kill themselves that the autonomy citizens. interest in protecting the life of its paramount to the state and its of suicide was seen to have its roots Rather, the matter not to outside the law, and for that reason solutions in sciences mandate a legal remedy. Physician[s]-assisted suicide, like euthanasia, is unethical and like euthanasia, suicide, Physician[s]-assisted Where the assis- medical profession. by the must be condemned directed at and deliberately physician is intentionally tance of the life, the physician his or her own an individual to end enabling treatment is right to decline medical However the acts unethically. not act unethi- the physician does of the patient and a basic right of the such a wish results in the death cally even if respecting patient. 112. Rodriguez v. British Columbia (Att’y General), [1993] S.C.R. 519 at 597–98 113. 644 P 114. 111. Rodriguez It was a similar story in England, where suicide was decriminalized by in England, where suicide was decriminalized It was a similar story 310. Does this accurately reflect the continuing condemnation of euthanasia in cumstances by professional bodies such as the WMA? (Can.). H.C., (4th ser.) (1960-61) 822–23 (U.K.). minor revision in 2013) http://www.wma.net/en/30publications/10policies/e13b/. Moreover, the inconceivable for physicians “or conceivable ending the life of a patient is either ethically only in stringently defined exceptional circumstances.” the Suicide Act 1961. concerns (concerns which subse- Responding to to be well-founded) that quent misunderstanding has shown as a condonation of suicide, the decriminalization might be interpreted it clear that it should not be responsible government minister made was changing the method of thought that because the government to depreciate the gravity of treatment for the suicidal it was seeking it should not be thought that “self attempted suicide, and stressed that by the government. murder” was regarded at all lightly 18 to euthanasia. and suicide to assisting Physician- on Its “Statement reads: Suicide” Assisted In \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 18 7-MAY-14 15:32 nance of the prohibition on assisting or encouraging suicide, punisha- nance of the prohibition on assisting provides further evidence ble by up to fourteen years’ imprisonment, to condone suicide, let alone that decriminalization was not intended create a right to suicide. was decriminalized, it ceased to After suicide be criminal, but remained unlawful. (The fact that conduct is not, or is is not contrary to law.)no longer, criminal does not mean it Hence the suicide.serious crime of assisting or encouraging And, in English law at another to assist one to commit any rate, it remains criminal to incite suicide. is clear that requesting assistance Justice Smith stated that, “it any law.” in death does not in and of itself contravene 34929-nde_28-1 Sheet No. 14 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 14 34929-nde_28-1 34929-nde_28-1 Sheet No. 15 Side A 05/07/2014 15:37:06 19 116 at para. Id. the House of Lords the House 115 , . at para. 134. The Supreme Court held that the Id ) the Supreme Court of Ireland rejected the appellant’s argu- ) the Supreme Court of Ireland rejected the A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT infra at para. 35–36. 19 (a case Similarly, in Fleming v. Ireland, [2013] I.E.S.C. appears to equate decriminalization with condonation. appears to equate decriminalization But Id. R. (Pretty) v. Director of Public Prosecutions v. Director of Public R. (Pretty) In Carter It is difficult to succeed in an equality challenge to a law which applies to every- It is difficult to succeed in an equality challenge on the fundamental equal value of one without distinction, and which is based each human life. laws will affect individuals in It is often the case that neutral a fundamental right that does not different ways: in the absence of impact on normally give rise to any unconstitutionality. 115. R. (Pretty) v. Dir. of Pub. Prosecutions, [2001] U.K.H.L. 61, [2002] 1 A.C. 800 116. . at para. 133. Moreover, when the appellant lost the ability to commit suicide, this was appellant had no right which could be interfered with by any disability, and that, as there was no right to commit suicide, issues such as discrimination did not arise. 138. discussed in Part V, discriminated against those who were ment that the law’s prohibition on assisting suicide assistance.physically unable to commit suicide without Chief Justice Denham, delivering prohibition applied “equally to everybody,” the judgment of the court, stated that the adding: Id not through operation of any law before which she was required to be held equal, but through the fact of her condition. this is, as Lord Bingham (and Justice Sopinka before him) indicated, a this is, as Lord Bingham (and Justice false equation. wishing to eradicate recrea- Imagine that a legislature, prohibition on the recreational pos- tional heroin use, lifts the criminal session and use of heroin—oncan be the ground that heroin addicts than by criminal prosecution—butbetter helped by medical treatment heroin.maintains the prohibition on supplying Would this discrimi- to procure a supply?nate against a person too disabled Would such a fix?person be entitled to a judicially-approved Or imagine a legislature (Eng.). 2014] judgment (and the law criminal of Canadian statement an accurate of assisting prohibition the continuing it), to support no authority cites of evidence clear law, provides English as in law, in Canadian suicide disapproval of suicide. the law’s \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 19 7-MAY-14 15:32 rejected the appellant’s argument that the law against assisting suicide against assisting that the law appellant’s argument rejected the una- were physically who, like the appellant, against those discriminated suicide.ble to commit argu- out that such an Bingham pointed Lord no right to misconception, for the law conferred ment rested on a suicide. was not decriminalized because the prohibition Suicide was stigma on deterrent; because it cast an unwarranted thought to act as a it led to the dis- of the suicide’s family, and because innocent members attempted suicides.tasteful result of prosecuting the Suicide Act That the serious pun- to commit suicide was illustrated by conferred no right for assisting suicide.ishment it provided law could not, The criminal to everyone. as discriminatory because it applied he added, be regarded offence-creating of the criminal law was to apply its The broad policy provisions to everyone. of drugs did Provisions criminalizing the misuse not exempt the addict.was, in law, killing. Moreover, “mercy killing” to proscribe the “If the criminal law sought His Lordship concluded: of the vulnerable, but exoner- conduct of those who assisted the suicide of the non-vulnerable, it could not ated those who assisted the suicide which would command respect.” be administered fairly and in a way 34929-nde_28-1 Sheet No. 15 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 15 34929-nde_28-1 34929-nde_28-1 Sheet No. 15 Side B 05/07/2014 15:37:06 119 their [Vol. 28 without RGUMENT ” A ) “self murder.” The patients 121 LOPE treat S their consent. the Moreover, ETHICS & PUBLIC POLICY LIPPERY with “S LAW, them that the purpose of the prohibition on that the purpose of the prohibition OGICAL at para. 16. The relevance is not obvious. The relevance is The legal 120 . L 118 terminate , Justice Sopinka observed that the purpose of the pro- , Justice Sopinka observed that the text accompanying note 113. text accompanying note 6. VADING THE , [2012] B.C.S.C , [2012] B.C.S.C. at para. 1149. at para. 1151. NOTRE DAME JOURNAL OF See supra See supra Carter Id. Carter Persons may indeed control their own physical integrity, but control their own physical integrity, Persons may indeed III. E Rodriguez 117 Finally, if, as Justice Smith held, the law discriminates against those Finally, if, as Justice Smith held, the Justice Smith asserted that, “The starting point in our law—the “The starting point asserted that, Justice Smith Justice Smith claimed In 121. 119. 120. 118. 117. that no person is entitled to have death inflicted upon him. that no person is entitled to have death the judgment impose conditions unable to commit suicide, why did who need of assistance to kill them- (such as ‘grievous illness’) on those to those who are physically able to selves, conditions which do not apply kill themselves? not discriminatory? Why are such conditions 20 the regarding but mutilation, genital female to eradicate wishing which, decriminalizes practice, of a barbaric as victims it who undergo women mutila- on assisting the prohibition while maintaining self-mutilation, tion.mutilate too disabled to against a woman this discriminate Would genitalia?her own be entitled to judicially- such a woman Would mutilation? approved default position—isphysical integ- their own that persons control rity.” \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 20 7-MAY-14 15:32 within limits. our lives, and law recognizes our physical integrity, The we have the right to safeguard.our autonomy as goods It does not fol- healthy limbs, to consent to the amputation of low that we may lawfully undermines these into slavery, conduct which be killed, or sell ourselves goods. with direct rele- proceeds that “[a]n example The judgment informed consent is the evolution of the doctrine of vance to this case to medical treatment.” assisting suicide is protection of the “vulnerable.”assisting suicide is protection of the This overlooks the of the inviolability of life, of distinct purpose of affirming the principle or not, from committing (to echo discouraging anyone, “vulnerable” above the British government minister quoted requirement of consent to medical treatment provides a shield against to medical treatment provides requirement of consent not a sword to demand interventions.unwanted touching, It does not that physicians may not follow from the fact consent that they can consent that they killing of patients has never been regarded by the law as a medical treat- killing of patients has never been regarded the medical profession as a whole ment but as a serious crime (and by as healer).as inconsistent with the physician’s role Reflecting such rea- provides, it will be recalled, soning, Section 14 of the Criminal Code crime of assisting suicide is committed irrespective of the vulnerability crime of assisting suicide is committed of the suicide. of the vulnerable.hibition was not confined to protection Early in his a society based upon respect for judgment he asked: “As members of the intrinsic value of human life and on the inherent dignity of every 34929-nde_28-1 Sheet No. 15 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 15 34929-nde_28-1 34929-nde_28-1 Sheet No. 16 Side A 05/07/2014 15:37:06 , 21 128 at 608. Id. fulfilled “the gov- fulfilled 124 protecting the vulnera- protecting There was no halfway mea- and Moreover, while bodies such Moreover, while bodies 130 129 intrinsically morally and legally wrong but he continued that this purpose “is but he continued at 613. The sanctity of life had, he added, long he added, of life had, sanctity The 126 Id. 122 A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT 127 at 590 (emphasis added). that the blanket ban was He concluded at 595. at 613. at 601 (emphasis added). He also stated that to the extent that there was a He noted that Section 241(b), which was “grounded in the which was “grounded that Section 241(b), He noted Id. Id. Id. Id. Id. Id. Id. Id. At one point he did state that the section has as its purpose the the section has he did state that At one point 123 The purpose was not only a policy of the state but was part of not only a policy of the state but The purpose was 125 [F]irst, because the purpose extends to the protection of the life [F]irst, because the purpose extends of the terminally ill.this purpose . . . is to discourage the Part of 127. 128. 129. 130. 126. 125. 122. [1993] S.C.R. 519, 585 (Can.). Rodriguez v. British Columbia (Att’y General), 123. 124. consensus, it was that “human life must be respected” and we must be careful not to undermine the institutions that protect it. The consensus was reflected in the prohibition of capital punishment, a prohibition supported, in part, on the basis that allowing the state to kill would cheapen human life. The prohibition on assisting suicide served a similar purpose, and to permit a physician lawfully to participate in taking life would send a signal that there were circumstances in which the state approved of suicide. grounded on a substantial consensus among western countries, medical organizations, grounded on a substantial consensus among that “in order to effectively protect life and and the Canadian Law Reform Commission prohibition was the best approach.those who are vulnerable” an exceptionless The for- and had failed to allay fears that a relaxa- mulation of safeguards had been unsatisfactory undermine the protection of life and will tion of the clear standard set by the law “will lead to abuses of the exception.” The Law Reform Commission of Canada had noted, in its working Commission of Canada had noted, The Law Reform of treatment, aiding suicide, and the cessation paper on euthanasia, be a fundamental of human life is acknowledged to that “[p]reservation law endorsed the and that in general the criminal value of our society” of human life. principle of the sanctity 2014] which Constitution the within incorporate can we being, human own one’s terminate a right to values most fundamental our embodies any circumstances?” life in \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 21 7-MAY-14 15:32 Canada’s “fundamental conception of the sanctity of human life.” conception of the sanctity of Canada’s “fundamental respect for and the desire to protect human life,” to protect human and the desire respect for vulnerable, protection of the and second, there is no certainty that abuses can be prevented by any- and second, there is no certainty that thing less than a complete prohibition.” been understood to exclude freedom of choice in the self-infliction of in the self-infliction freedom of choice to exclude been understood death. reflects the policy interest in protecting life and grounded in the state by allowing life life should not be depreciated of the state that human to be taken.” as the Commission had great sympathy for those who wanted to end had great sympathy for those who as the Commission suffering, they refused to condone their lives in order to end significant euthanasia and assisting suicide. Sopinka added: “The basis for Justice this refusal is twofold it seems—first,by one the active participation individual in the death of another is sure that could be relied upon with assurance to fully achieve the sure that could be relied upon with legislation’s purpose: ernment’s objectives of preserving life objectives of preserving ernment’s ble.” 34929-nde_28-1 Sheet No. 16 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 16 34929-nde_28-1 34929-nde_28-1 Sheet No. 16 Side B 05/07/2014 15:37:06 are [Vol. 28 133 , Chief Justice Rehnquist, deliv- 132 ETHICS & PUBLIC POLICY at 731-32 . Id. LAW, meets them (whatever they mean) or meets them (whatever they mean) It also agreed with the arguments 134 almost Washington v. Glucksberg text accompanying notes 9–11, and note 12. , [2012] B.C.S.C. at 327–28. at 614. Similarly, in 131 NOTRE DAME JOURNAL OF Carter See supra Id. entails the endorsement of non-voluntary euthanasia, that is, of non-voluntary euthanasia, entails the endorsement interest was the protection of vulnerable groups including the poor, elderly, and However, her judgment nowhere answered the cardinal objection, nowhere answered the cardinal However, her judgment out in the judgment First, the criteria for euthanasia set Justice Smith concluded, in relation to the protection of the vul- protection of the relation to the concluded, in Justice Smith Secondly, the judgment accepted that the criminal law draws no Secondly, the judgment accepted that terminally ill from choosing death over life. death choosing ill from terminally the even if Secondly, purpose, the legislative from be stripped can consideration latter the to limit be made can the exception that no assurance we have genuinely desire terminally ill and life to those who are taking of death. 134. 132. Carter v. Canada133. (Att’y General), [2012] B.C.S.C. 886, para. 16 (Can. B.C.). 131. ering the judgment of the U.S. Supreme Court, listed several state interests justifying the ering the judgment of the U.S. Supreme Court, prohibition on assisting suicide. had an unqualified interest in the First, Washington preservation of human life. the sanctity of life represented by the laws The interests in against homicide were threatened by one willing to participate in taking another’s life. The interest was symbolic and aspirational as well as practical. 521 U.S. 702, 728 (1997). Another disabled from abuse, neglect and mistakes. 22 \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 22 7-MAY-14 15:32 raised in expert evidence for Canada, that once the principle of the for Canada, that once the raised in expert evidence euthanasia in is abandoned by endorsing voluntary inviolability of life intrinsic and ine- the bright line grounded in the some circumstances, line depen- of each patient is usurped by an arbitrary liminable dignity be “better off judgments about which patients would dent on subjective euthanasia particular, the endorsement of voluntary dead” and that, in logically patients.the killing of incompetent There are three reasons why all this is so. nerable, that an alternative means of protecting the vulnerable would the vulnerable means of protecting that an alternative nerable, allowing in place, absolute” prohibition an “almost be to keep competent, fully- ill adult persons who are “grievously and irremediably duress” to receive and free from coercion or informed, non-ambivalent or assistance in suicide. a lethal injection advanced by three experts for the plaintiffs—Professorsadvanced by three experts for the and Battin (a physician)—thatSumner (philosophers) and Dr. Angell is no there death” and other end of ethical distinction between “physician-assisted someone who feels that their life is no longer worth living for other someone who feels that their life is And why reject the plaintiffs’ reasons, whether or not health-related? should count? And is suffering, argument that “psychosocial” suffering which is “intolerable” to the especially “psychological” suffering, criterion? patient, not an inherently subjective about a prohibited conse- distinction between intentionally bringing that the prohibited consequence quence and doing something knowing is virtually certain to result. vague. What, precisely, is meant by a “serious illness, disease or disabil- vague. What, precisely, is meant by capacities”? Would arthritis, or ity”, and a “state of advanced weakening The conditions are also arbitrary. impaired hearing or sight, qualify? Why exclude someone who 34929-nde_28-1 Sheet No. 16 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 16 34929-nde_28-1 34929-nde_28-1 Sheet No. 17 Side A 05/07/2014 15:37:06 23 can draft- “slippery UICIDE AND S empirical SSISTED Voluntary Euthanasia ) defenders of relax- A infra 137 UTURE OF F argument, the HE L.J. 545 (2002). Lillehammer asserts , T logical ORSUCH AMBRIDGE M. G , 61 C EIL However, if there is no legal and ethical distinc- ethical legal and is no if there However, 135 A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT require opponents of reform to show that the incidence of eutha- require opponents of reform to show that the not who decides whether to grant the patient’s request, and who decides whether exceptions to the law against medical killing, safeguards cannot be made exceptions to the law against medical killing, . at para. 335, 1336. 132–38 (2006). it should so limit the “benefit” of euthanasia. Id This argument runs that even in cases of voluntary euthanasia This argument runs doctor why policing 136 Thirdly: there is the formidable logical “slippery slope” argu- the formidable logical “slippery Thirdly: there is One possible argument is that the law does sometimes distinguish between consen- 136. Although the focus here is on the 137.Lillehammer, For an attempt to answer it, see Hallvard 135. and UTHANASIA nasia and physician-assisted suicide has increased wherever the law has been relaxed. nasia and physician-assisted suicide has increased (unless we believe that the law against Although such an increase is indeed to be expected deterrent effect) statistical evidence of prac- murder, and professional sanctions, have no tice before legalization may well be non-existent. For a persuasive argument, based on of euthanasia and physician-assisted suicide the “law of demand,” about the likely increase after their decriminalization, see N ation of the law, whether in the Netherlands, Oregon, or elsewhere, have failed to show. ation of the law, whether in the Netherlands, The argument does effective. of the law to show that such safeguards It challenges advocates of relaxation shall see in Part IV, be made effective, something which (as well that the law could require both beneficence and autonomy.that the law could require both beneficence So it could. But he omits to explain slope” argument (which the judgment also failed to address adequately) should not be slope” argument (which the judgment also overlooked. given the intractable difficulties of The empirical argument holds that, ing sual and non-consensual conduct, as in relation to sexual intercourse. The response to this argument is that, while a rapist could hardly invoke beneficence to justify intercourse with an incompetent woman, a doctor could well (as doctors do in the Netherlands) invoke beneficence to justify ending the life of an incompetent patient to end their suffering. E and the Logical Slippery Slope Argument 2014] is highly outcome “whose treatment, palliative such as life practices, to be death. likely” \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 23 7-MAY-14 15:32 no responsible doctor would grant the request unless he or she judged would grant the request unless no responsible doctor life was no benefit the patient, because the patient’s that death would longer “worth living.” such a judg- Once a doctor is prepared to make the judgment patient capable of requesting death, ment in the case of incapable of be made in the case of a patient can, logically, equally requesting death. are thought If respect for autonomy and beneficence not thought to euthanasia, why is beneficence alone to justify voluntary euthanasia?justify non-voluntary would benefit If a doctor thinks death the patient that benefit merely the patient, why should the doctor deny asking for it?because the patient is incapable of If denying assistance of committing it, and for whom in suicide to those physically incapable to discrimination, why does deny- death is thought a benefit, amounts of requesting it, and for ing euthanasia to those mentally incapable amount to discrimination?whom death is thought a benefit, not The unanswerable. logical “slippery slope” argument is it is the tion between administering a poison like potassium chloride with intent chloride potassium like a poison administering between tion fore- to ease pain, administering morphine patient’s life, and to end a to it is lawful and ethical a side-effect, and will shorten life as seeing it to it of consenting patient is incapable when a dying do the latter and why to do the former is it not ethical undoubtedly is), why (which it of patient is incapable do so if the dying not be lawful to should it requesting it? ment. 34929-nde_28-1 Sheet No. 17 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 17 34929-nde_28-1 34929-nde_28-1 Sheet No. 17 Side B 05/07/2014 15:37:06 [Vol. 28 (2011). “In the AW . Is not the corollary L Id THICS AND E be a harm to him? not was heard, Sumner openly TUDY IN ETHICS & PUBLIC POLICY 142 It comes as no surprise that, in a : A S Carter LAW, 141 EATH D SSISTED , A at 125. “There are circumstances under which nonvoluntary Id. As for the counter-argument that assisted suicide and As for the counter-argument UMNER 138 139 , [2012] B.C.S.C. 886 at 234 (emphasis added by Justice Smith). , [2012] B.C.S.C. 886 at 234 (emphasis added at para. 235. L.W. S at para. 351. life would outweigh the He states: “If the goods of further This justification holds even when the result of any of these This justification holds NOTRE DAME JOURNAL OF See Id. Id. Id. Carter to continue living and that death would not Sumner’s argument prompts at least two obvious questions.Sumner’s argument prompts at least First, Tellingly, arguments thought to justify voluntary euthanasia, which euthanasia, justify voluntary to thought arguments Tellingly, Treatment cessation, pain management, and terminal sedation can. . .all and terminal cessation, pain management, Treatment choice (whether outcome of an informed when they are the be justified patient, and they a decisionally capable refusal) on the part of request or suf- of the patient by preventing or avoiding needless serve the best interest fering. of the patient’s death.measures is the hastening Indeed, these patient circumstances better serve both measures may in many that is the well-being by hastening death, if autonomy and patient minimize patient seeks and that will help to outcome that the suffering. A third question: if Sumner agrees that competent patients have a right to refuse life- A third question: if Sumner agrees that competent 142. 141. 139. 140. 138. 140 that if the evils of further life would outweigh the goods then it would be better for the that if the evils of further life would outweigh person saving treatment for any reason, and if he thinks the doctor’s foresight of the patient’s saving treatment for any reason, and if he thinks hastened death is ethically equivalent to intentionally hastening the patient’s death, why does he not subscribe to a right to demand euthanasia for any reason? evils then it would be better for the person to continue living, and death would therefore evils then it would be better for the person to of this good future.” be a harm to him since it would deprive him case of severely disabled newborns, the best interest standard can therefore lead to the result that (a) no corrective treatment will be undertaken for the infant’s condition and (b) euthanasia will instead be administered. In short, it can justify nonvoluntary euthana- sia as an outcome.” He added: “It is obvious that either assisted suicide or voluntary eutha- that either assisted suicide or He added: “It is obvious to exactly the in exactly the same way by reference nasia can be justified same values.” 24 \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 24 7-MAY-14 15:32 if there is no difference between intending death and foreseeing death, if there is no difference between intending in the case of incompetent and if treatment cessation is justified surely accept, unless he sub- patients (a proposition Sumner would life-preserving measures should scribes to the absurd proposition that from incompetent patients), why never be withheld or withdrawn patients?should euthanasia be denied to incompetent Secondly, if he patient would be served by thinks the best interests of an incompetent his or her hand merely because euthanasia, why should the doctor stay the patient is unable to request it? if the patient no longer has, in What his words, “a life worth living”? were adduced by the plaintiff’s two lead ethical experts, Professors Bat- Professors ethical experts, two lead by the plaintiff’s adduced were no offer the judge, length by at some quoted and Sumner, tin and the logical argument.answer to are obviously vulnerable Indeed, they to it.Sumner as stating: judgment quotes The voluntary euthanasia involve an intent to kill, and that other end-of-life involve an intent to kill, and that voluntary euthanasia Sumner rejects the judgment simply reports that practices need not, it. book published the same year endorsed non-voluntary euthanasia. 34929-nde_28-1 Sheet No. 17 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 17 34929-nde_28-1 34929-nde_28-1 Sheet No. 18 Side A 05/07/2014 15:37:06 25 146 non- eutha- 144 IOETHICS ON B 145 involuntary SSAYS IN : E EATH D ORST W It is one thing to argue that, in thing to argue that, It is one EAST 143 L HE , T ATTIN B And what of “existential suffering,” being “tired And what of “existential suffering,” ABST 147 A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT P 120–23 (1994). , Nederlandse Jurisprudentie 1994, no 656. The Supreme Court stated [2012] B.C.S.C. 886 at 239. the inviolability of life is, The principle of , [2012] B.C.S.C. 886 at para. 239. case. IFE at 241. ARGARET L Chabot Id. Carter Carter, euthanasia (euthanasia of the incompetent). euthanasia (euthanasia Why should the THE at 126. Chabot Id. ND OF It is worth adding that, contrary to Battin, it can indeed be argued It is worth adding that, contrary to Similarly, the evidence of Professor Battin provides no answer to no answer provides Battin of Professor evidence the Similarly, [I]t cannot be claimed that permitting physician-assisted dying that permitting physician-assisted [I]t cannot be claimed suffering lovesick teenagers who are not would require assisting be condition to die; likewise it cannot from a serious medical basis of physician-assisted dying on the claimed that permitting for would require involuntary euthanasia the principle of mercy alive. pain but nevertheless desires to stay someone who is in 145. M 147. 144. 146. 143. E that the suffering resulted from a “depression in a particular sense without psychotic char- acteristics in the context of a complicated grieving process.” Hoge Raad der Neder- landen [HR] [Supreme Court of the Netherlands], 21 June 1994 (Neth.), Strafkamer, n. 96 972, para. 4.5. of course, notably absent from her list. How, then, can mercy be confined to suffering due to illness, let alone How, then, can mercy be confined “grievous” illness? of suffering. There are many sources There is, for of the mental suffering endorsed as example, grief, which was the cause death by the Dutch Supreme Court an acceptable ground for hastened in the incapable persons in the dying pro- euthanasia offers the best outcome for decisionally cess.” However, the logical slippery slope argument is not that acceptance of slippery slope argument is not that However, the logical logically involves acceptance of voluntary euthanasia 2014] \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 25 7-MAY-14 15:32 nasia (euthanasia against the wishes of a competent patient).nasia (euthanasia It is that of euthanasia logically involves acceptance acceptance of voluntary voluntary intolerably be denied a merciful incompetent patient who is suffering release? The judgment does not say. Moreover, in her published work, euthanasia. Battin, like Sumner, endorses non-voluntary that, if voluntary euthanasia is to be allowed, it should be available to that, if voluntary euthanasia is to be a much wider range of candidates the lovesick teenager, or at least to illness.than those suffering from a serious It is arbitrary to confine is caused by illness, let alone illness euthanasia to those whose suffering of a particular degree. the principle of “mercy” means Battin states that suffer, without adequate cause.” that “No one should be . . . forced to the logical slope argument. slope the logical the that her as saying quotes judgment The to “the right (or and mercy autonomy debate are in the principles core pain and suffering”). be free from of life,” which, though hitherto rejected by the Dutch courts as an of life,” which, though hitherto rejected in the Netherlands, including acceptable ground, is thought by many the case of an autonomous patient, voluntary euthanasia can be justi- euthanasia can patient, voluntary of an autonomous the case the non- mercy be denied but why should and mercy, fied by autonomy patient?autonomous in her that because, evidence reads Her quoted operate and do not must work in tandem and mercy view, autonomy independently: 34929-nde_28-1 Sheet No. 18 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 18 34929-nde_28-1 34929-nde_28-1 Sheet No. 18 Side B 05/07/2014 15:37:06 : 154 UICIDE 151 [Vol. 28 ISABILITY .” S , D SSISTED Professor Bat- Professor -A but rather should 150 HYSICIAN P in . at para. 239. , id (Apr. 14, 2001), www.cnn.com/ . 152 Cf COM At one point, ETHICS & PUBLIC POLICY 149 , CNN. LAW, (June 5, 2001), http:/old.nationalreview.com/inter- Euthanasia Sets Sail: An Interview with Philip Nitschke, the Euthanasia Sets Sail: An Interview with Philip tolerate their suffering but do not wish to do their suffering but tolerate 155 NLINE (July 7, 2009), http://www.disabilityartsonline.org.uk/crip- . O could EV LOG R 63, 71 (Margaret Pabst Battin et al. eds., 1998). If, she adds, we L B ’ text accompanying notes 138–45. AT EBATE N But the principles underlying the reasoning of the lead- But the principles underlying the , [2012] B.C.S.C. 886 at para. 240. , [2012] B.C.S.C. 886 at para. 342. ” RIPPEN , D Physician-Assisted Suicide: Safe, Legal, Rare? to justify a hastened death. a hastened to justify one of Nitschke, Dr. Philip And C 153 . at para. 242 (emphasis added). NOTRE DAME JOURNAL OF Open Letter from Leaders of Disabled People’s Movement in UK and USA Open Letter from Leaders of Disabled People’s Movement Id See supra Carter Carter Dutch Minister Favors Suicide Pill 148 . Another essay in the same volume (an essay which takes no side in the ethical Id NLINE Clearly, once the law abandons the bright line prohibition on any law abandons the bright line prohibition Clearly, once the consensus in Canada that Justice Smith found that there is a strong O 152. 151. 149. Kathryn Jean Lopez, 154. 155. we are witnessing “the first breaking In one of her books, Battin asks whether 153. 150. 148. RTS XPANDING THE E 2001/world/europe/04/14/netherlands.suicide/index.html. Other “Dr. Death on death and dying to another, a far more waves of a sea-change from one perspective seen changes in reproduction?”autonomist and directive one much as we have Margaret Pabst Battin, are, then the assumption that physician-assisted suicide “would or should be rare” col- lapses. debate) suggests that decriminalization will bring about profound changes in the way that death and dying are viewed and that social and economic considerations will impact indi- vidual decision-making such that “[a] lingering death may come to seem an extravagance, rogatory/interrogatory060501.shtml. pen-cartoon-blog?item=446. would appear to justify euthanasia, both voluntary and non-voluntary, would appear to justify euthanasia, in a wide range of cases. A 26 leg- Dutch euthanasia the introduced who of Health Minister the Dutch islation, \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 26 7-MAY-14 15:32 the world’s leading advocates of euthanasia, has reportedly supported reportedly has euthanasia, of advocates leading the world’s teen.” to the “troubled its availability world of arbitrary of patients’ lives, it enters a fuzzy intentional ending living.”whose lives are, or are not, “worth judgments about It is not legalization. groups in general strongly oppose surprising that disability and United groups in the United Kingdom A letter from disability “We are like a proposal to relax the law stated: States which opposed the dangers of in the coalmine’ who can often see society’s ‘canaries it impacts on us legislation before others, as potentially discriminatory is done.even before the deed will be terrified if We are scared now; we assisted suicide becomes state-sanctioned.” engage in euthanasia “it would be if it is ever ethical for physicians to where it is clearly consis- only in limited and exceptional circumstances, interests, and in order to relieve tent with the patient’s wishes and best suffering.” ing ethicist experts for the plaintiffs, Professors Sumner and Battin, ing ethicist experts for the plaintiffs, be available to those for whom life has become not worth living to them for whom life has become not worth living be available to those so? Upshur, judgment, Dr. quoted in the next plaintiff’s expert The should only that assisted suicide and euthanasia states: “I do not believe who are diagnosed as terminally ill, be available to those tin states that euthanasia should only be available to avoid “suffering only be available that euthanasia should tin states about to be so.” intolerable or that is either be But why should mercy those who denied to 34929-nde_28-1 Sheet No. 18 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 18 34929-nde_28-1 34929-nde_28-1 Sheet No. 19 Side A 05/07/2014 15:37:06 27 UI- 158 S SSISTED -A the logical the HYSICIAN evades P 157 for incompetent patients for incompetent Meanings of Death, in ), Chief Justice Denham noted that the right to ), Chief Justice Denham noted that the right infra obvious implications of non-voluntary euthanasia. to Responding 11, 23 (Margaret Pabst Battin et al. eds., 1998). EBATE A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT incidence D , [2012] B.C.S.C. 886 at para. 365. . at para. 313.Court was alert to the implica- By contrast, the U.S. Supreme Earlier, the judgment had observed: the judgment had Earlier, CIDE Id Carter XPANDING THE (a case discussed in Part V, 156 Justice Smith, then, dodged the logical “slippery slope” from volun- Justice Smith, then, dodged the logical Remarkably, Justice Smith’s judgment simply judgment Justice Smith’s Remarkably, The plaintiffs do not argue that physician-assisted death should be physician-assisted do not argue that The plaintiffs request it. not, themselves, on patients who do imposed There- on a limited to this case focuses ethical debate relevant fore, the (decisionally are competent adults those who class of patients: and all as to their diagnosis, prognosis capable); fully informed consist- or palliative care; persistently and options for treatment with death (that is, non-ambivalent); ently requesting assistance coercion or undue influence. and not subject to In general, the Constitution guarantees rights of general application for the In general, the Constitution guarantees rights benefit of every citizen and person entitled to assert such rights. The Court accordingly does not accept the submission that there exists a constitutional right for a limited class of persons, which in this case would include the appel- lant, deducible from their particular personal circumstances. 158. Carter v. Canada [Att’y General], [2013] B.C.C.A. 435, at para. 154. (Can. 157. 156. : E at para. 115. assistance in suicide claimed by the appellant in that case “would sweep very far indeed.” assistance in suicide claimed by the appellant 113.Fleming v. Ireland, [2013] I.E.S.C. 19 at para. The Chief Justice added: Id. B.C.). tions of accepting what was presented as a limited right to physician-assisted suicide. tions of accepting what was presented as a was a right, it was a right enjoyed by every Chief Justice Rehnquist noted that if suicide to competent, terminally ill adults, and the man and woman and could not be limited was for legal purposes the decision decision of a duly appointed surrogate decision-maker of the patient. likely, in effect, a much broader license, Such a right, he observed, “is and contain.”which could prove extremely difficult to police Washington v. Glucksberg, 521 U.S. 702, 733 (1997). of the Supreme Court of Ireland in Delivering the judgment Fleming a frivolous indulgence.” Patricia S. Mann, But the fact that the plaintiffs’ arguments do not (for the present) seek plaintiffs’ arguments do not (for But the fact that the the court of euthanasia surely does not relieve to justify non-voluntary the the duty to consider 2014] argument. slope” “slippery specu- “requires argument that the It states this issues in with the in connection tangentially only and arises lation case.” \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 27 7-MAY-14 15:32 (and other vulnerable patients) of those arguments.(and other vulnerable The evidence of clear or coher- experts indicates the absence of any the plaintiffs’ own once the whether voluntary or non-voluntary, ent limits to euthanasia, inviolability of life coherent line offered by the current bright, ethically is abandoned. tary to non-voluntary euthanasia. less remarkably, in the British No Finch’s dissent dismissed the Columbia Court of Appeal, Chief Justice relevance of the that the evidence of non-volun- the submission of counsel for Canada relaxed laws indicated the insuf- tary euthanasia from jurisdictions with Justice Finch wrote that as non- ficiency of their safeguards, Chief the consent of the patient it is voluntary euthanasia does not involve for voluntary euthanasia.” “not relevant to considering safeguards 34929-nde_28-1 Sheet No. 19 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 19 34929-nde_28-1 34929-nde_28-1 Sheet No. 19 Side B 05/07/2014 15:37:06 [Vol. 28 162 Char- 160 ETHICS & PUBLIC POLICY 159 LAW, . . at para. 280. . . at para. 86. NOTRE DAME JOURNAL OF Id Id Id Id They concluded: would be expanded far beyond what the law can “guarantee,” would be expanded far beyond what Moreover, the judgment of Chief Justice Finch also tends to rein- also tends to Chief Justice Finch the judgment of Moreover, 161 If “life” were regarded as incorporating various qualities which If “life” were regarded as incorporating the protection of the some persons enjoy and others do not, ter open up for those who are while conversely, a slippery slope would by the Chief Justice. unable to enjoy the blessings described The meaning of the term “life” in the context of s.7 includes a full term “life” in the context of s.7 includes The meaning of the human experiences.range of potential value a person The emo- life may include physical, intellectual, ascribes to his or her of spiritual experiences, the engagement tional, cultural and enjoying and feelings, meeting challenges, one’s senses, intellect friend- or overcoming defeats, forming successes, and accepting being cooperating, helping others, ships and other relationships, future a moment, and anticipating the part of a team, enjoying the past.and remembering by extension the Life’s meaning, and to the way a person val- life interest in s.7, is intimately connected ues his or her lived experience. is lost, when life’s positive The point at which the meaning of life life valueless, when suf- attributes are so diminished as to render personal decision which fering overwhelms all else, is an intensely him or herself. “everyone” has the right to make for 161. 162. 160. 159. But how is the law to define and determine when “the meaning of life is But how is the law to define and determine personal decision,” and why lost” and to police such an “intensely incompetent patients whose “posi- should euthanasia not be applied to render life valueless . . .”?tive attributes are so diminished as to Rightly, Chief Justice Finch’s interpre- Justices Newberry and Saunders rejected tation of “life.”those with only a limited ability to They observed that were no less “alive” and had no less enjoy the experiences listed by him were able-bodied and fully compe- a right to “life” than persons who tent. He added: 28 be would not is that it the law relaxing against argument a major But if without euthanasia to prevent police safeguards and to frame possible voluntary permit which jurisdictions from the evidence and request, is that euthanasia, why non-voluntary discloses widespread euthanasia not relevant? promoting likelihood of decriminalization about the force concerns and in practice. in principle euthanasia both non-voluntary Rejecting means physi- that “life” in Section 7 of the Charter Canada’s submission cal life, he concluded: \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 28 7-MAY-14 15:32 34929-nde_28-1 Sheet No. 19 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 19 34929-nde_28-1 34929-nde_28-1 Sheet No. 20 Side A 05/07/2014 15:37:06 : ., 29 TH- EATH , E EALTH- ETHER- D N This is EDUCED BY The evi- HE Q. H , S T 163 jurisdiction 166 RIFFITHS ET AL UTHANASIA ? The first offi- no ENDIN , E EGULATING G AMBRIDGE H 164 , R OHN EOWN , C The evidence from First, HINKING K UTHANASIA IN OMEZ ERBERT T 165 , E 168 OHN (2004): J ISHFUL LMAGOR (1991); H -A ILLING (1998); J W note 136, at chapter 7.2. K OHEN UICIDE ERCY supra S M ETHERLANDS note 164 at 332; 341. that control in the Netherlands, Belgium N INDINGS OR Legalizing Physician-Aided Death SSISTED ORSUCH HE (2008) Part I . supra F 169 G A ., T note 164, at 104–05, 113. For the results of later surveys see RACTICE OF UROPE P see also E ASE OF supra Part III (2002); R. C A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT ACTUAL note 164 at 180, 199. C ATIENTS AND AW IN supra EOWN OLICY , P L RIFFITHS ET AL K ., IV. F P G OLICY AND at para. 9. 10 (1996); . at para. 374. See P ICS AND Id See Id. 167 CARE LANDS OCTORS UBLIC HE P THICS : D : T It is therefore odd that Justice Smith should have concluded that It is therefore odd that Justice Smith E 168. Carter v. Canada (Att’y General), [2012] B.C.S.C. 886, at para. 10 (Can. B.C.). 169. 167. Alexander M. Capron, 164. see C. G On the Dutch experience in general 165. 14% of the 1,000 patients were “totally” competent and a further 11% “partly” 166. 163. EATH RIFFITHS ET AL UTHANASIA AND UTHANASIA AND THE Justice Smith concluded that the empirical evidence from jurisdic- from evidence the empirical that concluded Smith Justice E E G competent. D 2014] suicide is permitted physician-assisted euthanasia and/or tions where the safeguards. with levels of compliance” shows “differing \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 29 7-MAY-14 15:32 the evidence shows that the risks “can be very largely avoided through the evidence shows that the risks “can carefully-designed, well-monitored safeguards.” and Oregon cannot be effective because they rely on self-reporting by and Oregon cannot be effective because Belgium paints a similar picture: the common performance of non-vol- Belgium paints a similar picture: the failure to report. untary, active euthanasia and a frequent suicide has “carefully-designed, which permits euthanasia or assisting well-monitored safeguards.”judgment appears to offer no The response to the evidence some understatement. which few jurisdictions reality is that of the The even anything none has demonstrated their laws, have relaxed effective control.approaching that from evidence, The best available widely have long been key safeguards shows that the Netherlands, virtual impunity.breached, and with voluntary, active Since 1984, when Court, the evi- lawful by the Dutch Supreme euthanasia was declared surveys has by several Dutch government-sponsored dence generated the required of patients have been killed without shown that thousands have been ille- that thousands of euthanasia deaths explicit request, and as death by “natural causes.” gally certified by doctors of voluntary, that in 1990 there were 2,300 cases cial survey disclosed suicide; that over and 400 cases of physician-assisted active euthanasia were a further went unreported; and that there 80% of these cases (mostly, but by euthanasia without explicit request 1,000 cases of active incompetent patients). no means all, involving limited: there have been no dence from Oregon is much more the Netherlands.comprehensive surveys like those in Moreover, the respects, not least the absence safeguards in Oregon are in significant those in the Netherlands and of review committees, even laxer than have been aptly described by Belgium. The Oregon law’s safeguards Alexander Capron as “largely leading health lawyer Professor illusory.” 34929-nde_28-1 Sheet No. 20 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 20 34929-nde_28-1 34929-nde_28-1 Sheet No. 20 Side B 05/07/2014 15:37:06 SSISTED [Vol. 28 : A of non- is particu- OUGHT 172 note 164, at 119- S and of the New 199 (2008). legalization. The supra 175 condonation EATH IS after D UROPE EOWN . at para. 405, para. 406, para. E HEN see id , W AW IN and that some 550 patients (1994) AW L 178 L . CCPR/C/NLD/CO/4 (Aug. 25, 2009). ETHICS & PUBLIC POLICY OC THE ONTEXT & LAW, C Consideration of Reports Submitted by States Parties . at para. 560, para. 564. dis- The evidence also IFE The judgment also fails to give anything The judgment also Id L Concluding Observations of the Human Rights Committee: empirical evidence from the Netherlands evidence from the empirical UTHANASIA AND note 164, at 231-233. EDICAL 174 . CCPR/CO/72/NET (Aug. 27, 2001). The judgment states that there is now much The judgment states ., E M OC supra , para. 7, U.N. D . at para. 657. ORCE ON 176 ., F ASK undisputed and fails even to mention (despite it being cited in and fails even to T However, voluntary euthanasia was declared lawful by However, voluntary euthanasia was See also id RIFFITHS ET AL 173 TATE 177 J. G UTHANASIA IN THE RIFFITHS ET AL . at para. 484. courts held lethal injec- In two cases in 1996 Dutch appellate . at para. 455–504. E NOTRE DAME JOURNAL OF See Id Id , para. 5–6, U.N. D The judgment’s handling of the Dutch experience handling The judgment’s U.N. Human Rights Comm., 170 Secondly, the Secondly, Thirdly, the judgment skates over the official Thirdly, the judgment 171 177. Carter v. Canada (Att’y General), [2012] B.C.S.C. 886, para. 655 (Can. B.C.). 178. 174. U.N. Human Rights Comm., 173. 175. House of Lords, Report of the Select Committee on Medical Ethics, H.L. 176. N.Y. S 171. own Belgian expert disclosed a For example, evidence from the plaintiff’s 172. 170. For other concerns noted in the judgment . at para. at 567. UICIDE AND 20. adopted the ‘Groningen Protocol’ for In 2005 the Dutch Association for Pediatrics infanticide. G tions for disabled infants lawful in certain circumstances. K tions for disabled infants lawful in certain circumstances. Under Article 40 of the Covenant Netherlands See also Paper No. 21-I (1994). (U.K.). 429. reporting rate of only 52.8% there. euthanasia: 1.8% of all deaths in Flanders. closed a substantial incidence of non-voluntary Id S 30 doctors. or for euthanasia candidates require all do the guidelines Nor in palliative specialist or a a psychiatrist to consult suicide assisted care. \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 30 7-MAY-14 15:32 and Belgium shows widespread breach of the safeguards, not least the safeguards, not breach of the shows widespread and Belgium and of non-report- euthanasia incidence of non-voluntary sizeable ing. evidence) the repeated criticism of the Dutch by the United Nations criticism of the Dutch by the evidence) the repeated Human Rights Committee. the Dutch Supreme Court in 1984—in were 2002 the legal guidelines form.essentially translated into statutory The low rate of reporting in six years 1990 (18%) was, therefore, discovered fact that the reporting rate rose to 80% in 2005 (three years after the fact that the reporting rate rose to but from a low base, and enactment of the statute) is an improvement, obviously had nothing to do with “legalization.” That 20% of euthana- falsely and illegally certified by sia cases in 2005 year were still being physicians as deaths by natural causes, greater compliance with the requirement to report than there was “pre- greater compliance with the requirement legalization.” like adequate attention to important expert committee reports which to important expert committee like adequate attention their unanimous of the Dutch experience in have taken full account reports of the of euthanasia, not least the and considered rejection Committee on Medical Ethics House of Lords Select York State Task Force. larly unreliable, failing to give adequate attention to the widely- attention to the give adequate failing to larly unreliable, safeguards since widespread breaches of the Dutch acknowledged and 1984. courts and medi- of disabled infants by the Dutch voluntary euthanasia cal profession, 34929-nde_28-1 Sheet No. 20 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 20 34929-nde_28-1 34929-nde_28-1 Sheet No. 21 Side A 05/07/2014 15:37:06 , 31 The 181 bears little is hardly evi- is hardly 182 179 The evidence from 187 The judge, despite rec- Legal Physician-Assisted Dying in 184 text accompanying note 209. see also infra A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT note 174. 591 (2007). concluded that the Oregon law is working “fairly concluded that the Oregon law , [2012] B.C.S.C. 886 at para. 661. , [2012] B.C.S.C. 886 at para. 653. , [2012] B.C.S.C. 886 at para. 660. , [2012] 886 B.C.S.C. at para. 635. 185 at para. 621–36; Margaret Pabst Battin et al., at 180. depends on what she means by “law reform.” on what she means depends After legaliza- . at para. 667. . at para. 649; THICS Given the absence of comprehensive surveys, such a judgment Given the absence of comprehensive Id. Id See supra Carter Id Carter Carter Carter Id. 180 However, to show that the proportion of, say, elderly people However, to show that the proportion . E ED 186 Fourthly, the judgment attaches considerable significance to a attaches considerable significance Fourthly, the judgment 183 183. 187. 181. 182. 185. 186. 180. 184. 179. Oregon and the Netherlands: Evidence Concerning the Impact on Patients in “Vulnerable Groups” 33 J. M 2014] request, explicit the required without euthanized were \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 31 7-MAY-14 15:32 is surely unwarranted. were an absence of reported And even if there is not evidence of absence of abuse. abuse, absence of evidence of abuse data supported the evidence The judge also observed that the Oregon that it is possible to design a system of a Dutch expert, Dr. van Delden, and groups. that protects vulnerable individuals who were euthanized or assisted in suicide was no greater than the pro- who were euthanized or assisted in not show that those euthanized portion of elderly dying naturally does or depressed.or assisted in suicide were not pressured Moreover, as examination of practice in Oregon Battin et al. properly recognize, “full duration and comprehensive- would require studies of the complexity, studies.” ness of the four Dutch nationwide tion in 1984, a high incidence of non-voluntary euthanasia and of non- euthanasia and of non-voluntary a high incidence tion in 1984, was detected.reporting since have improved fact that the numbers The the law in the Netherlands the relaxation of evidence that then is hardly effective control. accompanied by has been that It is simply evidence or so years after bad than they were in the half dozen matters seem less legalization. demonstrating Dutch regime still falls far short of But the effective control.criticisms by the control were so effective, why the If in 2009? Committee in 2001 and again U.N. Human Rights well.” ognizing the limitations of self-reporting, and the doubts about ognizing the limitations of self-reporting, referral to a mental health profes- compliance with the requirement of suffering from mental disorder or sional of patients suspected to be depression, Oregon is, again, insufficient to support that conclusion, and the evi- Oregon is, again, insufficient to support goes the other way. dence from the Netherlands and Belgium dence of effective control. of effective dence that law conclusion judge’s the Again, in achieving progress considerable has made Netherlands in the reform its goals surveys, unless reality disclosed by the Dutch relation to the disturbing is not a peculiar view that non-voluntary euthanasia she entertains the “substantive abuse.” evidence of al purporting to show no statistical paper by Battin et and Ore- “vulnerable groups” in the Netherlands heightened risk to gon. assertion by Battin that the empirical data from the Netherlands “dem- that the empirical data from the Netherlands assertion by Battin little substantive abuse has occurred” onstrates that no or 34929-nde_28-1 Sheet No. 21 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 21 34929-nde_28-1 34929-nde_28-1 Sheet No. 21 Side B 05/07/2014 15:37:06 [Vol. 28 OLICY AND P , a woman The judge HE : T in that the plain- But how can , Supreme Court 189 , [2013] I.E.H.C. at Carter 192 aff’d Carter Moreover, if only a Moreover, ETHERLANDS 188 See Fleming N note 22, at 301–07. RELAND ETHICS & PUBLIC POLICY , supra . I This ignores expert evidence to This ignores expert 190 EOWN LAW, UTHANASIA IN THE was narrower than that in , E see K LEMING V F a case broadly similar to Fleming 193 Purdy , LMAGOR V. -A (2004); at 3(3). The court, distinguishing R. (Purdy) v. Dir. of Pub. Id. OHEN ILLING K R. C , [2012] B.C.S.C. 886 at para. 685. Mirroring the Suicide Act 1961 in England, the Criminal Mirroring the Suicide Act 1961 in ERCY at para. 10. at para. 683. The judge also concluded that empirical researchers and that empirical researchers The judge also concluded . at para. 684. M 194 NOTRE DAME JOURNAL OF See e.g., Id Carter Id. Id. 191 Fleming v Ireland In The judge concluded that the experience in Oregon is more likely is more in Oregon the experience that judge concluded The 194. the third defendant, the In the alternative, she sought an order directing 190. 191. 193. (Ir.), Fleming v. Ireland [2013] I.E.H.C. 2 (H. Ct.) The challenge to the law in 192. 189. 188. RACTICE OF [2013] I.E.S.C. 19. stating the factors taken into account Director of Public Prosecutions, to issue guidelines to prosecute anyone who assisted the plain- in deciding whether to prosecute or consent tiff to commit suicide. Prosections, [2010] 1 A.C. 345 (Eng.), rejected this claim. para. 126–75. For criticism of tiff did not challenge the prohibition on euthanasia, but wider in that she challenged the law prohibiting anyone, physician or layperson, from assisting suicide. The essence of her claim was distilled by Chief Justice Denham in the Supreme Court: that disabled persons suffering severe pain from a terminal and degenerative illness, and who were able to P 32 \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 32 7-MAY-14 15:32 to be predictive of what would happen in Canada if a permissive regime if a permissive Canada in would happen of what predictive to be to in relation even that acknowledged she though put in place, were can be drawn.” a weak inference Oregon “only with multiple sclerosis wanted to avail herself of assisted suicide at a with multiple sclerosis wanted to avail time of her choosing. the constitutionality of Ireland’s She challenged in section 2(2) of the Crimi- prohibition on assisting suicide, contained a declaration of incompatibility nal Law (Suicide) Act 1993, and sought Convention on Human Rights pursuant to section 5 of the European Act 2003. practitioners with experience in those jurisdictions conclude that their experience in those jurisdictions conclude practitioners with in protecting patients from abuse. systems work well the contrary which was placed before the court, and which is consistent was placed before the court, and which the contrary which not called as raised by other researchers who were with the concerns experts. weak inference can be drawn from the experience in Oregon, a juris- in Oregon, from the experience can be drawn weak inference the sup- what is voluntary euthanasia, does not permit diction which shows empirical evidence that the of the judge’s conclusion posed basis avoided be very largely euthanasia “can risks associated with that the well-monitored safeguards?” through carefully-designed, any system be said to “work well” when it relies on self-reporting or is to “work well” when it relies on self-reporting any system be said euthanasia and of incidence of non-voluntary associated with a sizeable non-reporting? its failings are recognized by Or when, like the Dutch, Human Rights Committee?bodies including the United Nations The judgment does not say. concluded that, “the expert opinion evidence from persons who have expert opinion evidence from concluded that, “the all three jurisdic- the question is that, with respect to done research into on vulnerable abuse and disproportionate impact tions, the predicted materialized.” populations has not 34929-nde_28-1 Sheet No. 21 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 21 34929-nde_28-1 34929-nde_28-1 Sheet No. 22 Side A 05/07/2014 15:37:06 33 to in prin- 198 However, the 200 —a totally different considered that insofar active steps by another 199 another http://www.taoiseach.gov.ie/eng/Histori- , the Court believes there is a real The State could not prescribe an The State could 197 available at implications for third parties or society at implications for third parties or society Glucksberg ending of the life of possible A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT ., 1937, art. 40, active , [2013] I.E.H.C. at para. 52 (emphasis in original). , [2013] I.E.H.C. at para. 49. , [2013] I.E.H.C. at para. 4. ONST at para. 53 (emphasis in original). at para. 50. 201 The plaintiff invoked Article 40.3.2 of the Irish Constitu- 40.3.2 of the invoked Article The plaintiff . C R without any Id. Fleming Id. Fleming Fleming She argued that insofar as it protected her “person” this as it protected that insofar She argued 195 this Court could be satisfied that it would be possible to tailor- this Court could be satisfied that it would , [2013] I.E.S.C. at para. 23. 196 The Divisional Court of the High Court The Divisional Court even if death is the natural, imminent and foreseeable conse- even if death is the natural, imminent large, there might be a good deal to be said in favour of her case. large, there might be a good deal to be If the needs of Ms. Fleming make a solution which would address alone Like Rehnquist C.J. in adult making the and defining difference between a competent on the one hand—decision not to continue medical treatment quence of that decision—and of the taking bring about the end of that life of the other.bring about the end of that life of the The former gener- the natural process of dying, ally involves the passive acceptance of us all, whereas the latter a fate that will ultimately confront involves the matter. engaged by the right to personal autonomy which lies at the core to personal autonomy which lies engaged by the right 201. 199. Comprising the President of the High Court (Kearns) and Justices Carney and 200. 198. 196. I 197. 195. Hogan. cal_Information/The_Constitution/. express their wishes, should not be prevented from being assisted to commit suicide. express their wishes, should not be prevented Fleming It went on: 2014] but punishes, suicide crime of the abolished Act 1993 (Suicide) Law abetting, aiding, years’ imprisonment, of fourteen a maximum with to commit by another attempt or an suicide procuring or counseling, suicide. \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 33 7-MAY-14 15:32 tion, which provides: “The State shall, in particular, by its laws protect as by its laws protect State shall, in particular, provides: “The tion, which vindi- of injustice done, and, in the case from unjust attack best it may citi- rights of every name, and property life, person, good cate the zen.” personal welfare, decisions concerning her necessarily embraced treatment. including medical orthodoxy in respect of life choices of this fundamental nature, and of life choices of this fundamental orthodoxy in respect must normally of this kind taken by competent adults individual choices compelling reasons to the contrary. be respected absent as the plaintiff advanced a conscientious and considered decision to a conscientious and considered as the plaintiff advanced her own life “in of others to take active steps to end seek the assistance and rendered illness which has ravaged her body the face of a terminal “is complete misery,” that such a decision her life one of almost ciple of the protection of the person by Article 40.3.2.” of the protection court said it chose the words “in principle” carefully, as there were court said it chose the words “in which fully justified the legis- “powerful countervailing considerations” lature in prohibiting assisting suicide. It added: 34929-nde_28-1 Sheet No. 22 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 22 34929-nde_28-1 34929-nde_28-1 Sheet No. 22 Side B 05/07/2014 15:37:06 of 204 [Vol. 28 application and this application under pressure to hasten Just as importantly, the court general ETHICS & PUBLIC POLICY 210 themselves LAW, Although the study by Battin et al. con- Although the study 202 207 the subjective nature of the ‘intolerability’ of the subjective nature 205 of any judicial decision which the Court might be the Court might decision which of any judicial 209 George had observed that, while overt pressure on indi- George had observed that, while overt There was the risk of misdiagnosis of terminal illness; of terminal the risk of misdiagnosis There was at para. 59. at para. 57. at para. 55 (emphasis in original). a fortiori at para. 63. at para. 61. at para. 62. at para. 60. . at para. 64. 211 NOTRE DAME JOURNAL OF The court could not, moreover, overlook the fact that one of not, moreover, overlook the fact that The court could Id Id. Id. Id. Id. Id. Id. Id. Id. Id. 203 and that pain ranked low in the motivational hierarchy of those low in the motivational hierarchy and that pain ranked 208 206 Moreover, Ganzini’s study found that of eighteen patients who had Moreover, Ganzini’s study found that is true to make. called upon But this Court cannot be so satisfied. cannot Court But this devise cannot certainly It impermissible be an which would solution form of legislative some Court. for the function that any Court is mindful Further, the to be of solution would have legislative 211. 210. 209. 207. 208. 206. 204. 205. 203. 202. Even with legislative safeguards “serious objections and concerns “serious legislative safeguards Even with 34 remain.” \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 34 7-MAY-14 15:32 received physician assistance in suicide, three had been suffering from received physician assistance in suicide, diagnosed or been the subject clinical depression which had not been of independent psychiatric evaluation. the co-authors of the Battin study, Professor Ganzini, had herself the Battin study, Professor Ganzini, the co-authors of safeguards in the about the absence of appropriate expressed doubts Oregon law. had given evidence, as an Moreover, Professor George from the Oregon Department expert for Ireland, that the 2011 report referral rate for psychiatric evalua- of Public Health had shown that the lives by physician-assisted suicide tion for those who had ended their was just 1.4%. seeking assisted suicide. viduals to end their lives would likely be uncommon, much more com- viduals to end their lives would likely and others can send, albeit mon were the signals that relatives pain; cluded that the evidence from the Netherlands and Oregon did not from the Netherlands and cluded that the evidence to pres- vulnerable groups were in fact vulnerable show that potentially of physician- of some of those groups in the context sure, the relevance open to question.assisted suicide was that, in their The court noted had argued Professors Ilora Finlay and Rob George reply to that study, for vulnera- categories are not necessarily a proxy that socioeconomic bility. continued, the Battin study did not address the concerns powerfully continued, the Battin study did not led by the State—palliativeexpressed by the two expert witnesses care Rob George—thatphysicians Dr. Tony O’Brien and Professor a under of patients with no visible sign of relaxed regime certain categories to any of the traditional categories depression and who did not belong of vulnerable patients would place manner that might often escape their death in this fashion in a subtle detection. mistaken prognosis; 34929-nde_28-1 Sheet No. 22 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 22 34929-nde_28-1 34929-nde_28-1 Sheet No. 23 Side A 05/07/2014 15:37:06 35 The court 212 214 It added: 213 A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT at para. 68. It was idle to suggest that even the consensual taking of at para. 67. at para. 66. . at para. 69. Id Id. Id. Id. Id. And this was quite apart from other considerations to which And this was quite apart from other 216 215 The Court finds that the State has provided an ample evidential The Court finds that the State has provided of the ban on assisted basis to support the view that any relaxation individual cases and would suicide would be impossible to tailor to the most vulnera- be inimical to the public interest in protecting ble members of society. The predominant thrust of the expert evidence offered by Dr. the expert evidence thrust of The predominant the ban George to the effect that relaxing O’Brien and Professor shift with would bring about a paradigm on assisting suicide attitude perhaps uncontrollable) changes in unforeseeable (and suicide struck the Court as compelling and behavior to assisted and deeply worrying. impressed by the The Court was particularly on many these two witnesses based as they are evidence given by in dealing with and treating terminally years of clinical experience ill patients. these witnesses, The Court finds the evidence of than that or separately, more convincing whether taken together somewhat Battin, not least because of the tendered by Professor by studies and categories of person studied limited nature of the witnesses also because the views of the State’s Professor Battin but of dealing with liter- are rooted in their solid clinical experience and both gave their evi- ally thousands of terminally ill patients the Court. dence in a manner which greatly impressed 216. 214. 215. 213. 212. The court noted that a further point of some importance was that The court noted that a further point relaxation of the law would compromise, perhaps in a fundamental and relaxation of the law would compromise, regarded as an essential ingredi- far-reaching way, that which was rightly to the protection of human life and ent of a civilized society committed dignity. message to particular vul- It might well send out a subliminal and the elderly, that in order to nerable groups, such as the disabled an era of shrinking public funds avoid consuming scarce resources in was a normal option which any for healthcare, physician-assisted suicide or degenerative illness should con- rational patient faced with terminal sider. It concluded: 2014] has or she that he member ill family to a seriously unconsciously, disrupted has become life or that family family on the a burden become illness.by their loving fatigue” even in a thing as “care There was such to feel a ill people it was easy for seriously and family environments, the scene. themselves from to remove sense of obligation \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 35 7-MAY-14 15:32 the legislature could properly attach great weight, such as the preserva- the legislature could properly attach profession as healers, and of deter- tion of the integrity of the medical of the “normalisation” of ring suicide and anything that smacks suicide. concluded: “Of the evidence given in this case, the Court prefers that the Court prefers given in this case, “Of the evidence concluded: the State.” offered by 34929-nde_28-1 Sheet No. 23 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 23 34929-nde_28-1 34929-nde_28-1 Sheet No. 23 Side B 05/07/2014 15:37:06 all 219 The [Vol. 28 220 the life of If the court were to equally 223 ETHICS & PUBLIC POLICY LAW, 222 The Dutch experience showed that the risks were that the risks experience showed The Dutch 218 In that regard, one had to have regard to the Dutch data, have regard to the one had to In that regard, The court continued: at para. 72. at para. 71. at para. 70. at para. 75. 217 . at para. 74 (emphasis in original). NOTRE DAME JOURNAL OF 221 Id. Id. Id Id. Id. Id. Id. It was true, added the court, that under the law’s proportionality It was true, added specifically because of the inability of even the most rigorous sys- specifically because of the inability of to ensure, in particular, that tem of legislative checks and balances unwanted, the rejected, the the aged, the disabled, the poor, the compromised and the emo- lonely, the impulsive, the financially their own personal prefer- tionally vulnerable would not disguise In the eyes of the Constitution, the last days of life of an elderly, In the eyes of the Constitution, the last death have the same terminally ill and disabled patient facing dignity and naturally value, possess the same intrinsic human of the healthy young person enjoy the same protection as the life of their life. These are, on the cusp of adulthood and in the prime democratic society must of course, concerns which any free and strive to protect and uphold. 222. 223. 221. 220. 219. 217. 218. The prohibition on assisting suicide was rationally connected to this The prohibition on assisting suicide fundamental objective of protecting life and was “not remotely based fundamental objective of protecting on arbitrary, unfair or irrational considerations.” 36 becoming physician of the the risk involve would not life another’s with of complacency the risks and paradigm, the new to accustomed as not be discounted could safeguards of maintenance to the regard negligible. \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 36 7-MAY-14 15:32 analysis, a complete statutory ban which overrode or significantly inter- statutory ban which overrode or analysis, a complete justification, espe- right required compelling fered with a constitutional profound issues of intimate choices in relation to cially in the case thought the autonomy. Nevertheless, the court touching on personal suicide, not least to enact the ban on assisting legislature “fully entitled” and to had to the wider public policy considerations when regard was to life. by Article 40.3.2 to safeguard the right the duty imposed which showed a lack of control, and that non-voluntary euthanasia was a euthanasia and that non-voluntary a lack of control, which showed serious problem. real and could not be dismissed as speculative, and, just as seriously, the and, just as seriously, as speculative, not be dismissed real and could lead to the unintentional might over time the statutory ban dilution of practitioners. and legal standards among medical erosion of moral unravel a thread of the law by even the most limited constitutional adju- unravel a thread of the law by even the or at least might, open a Pan- dication in the plaintiff’s favor, it would, at risk. Such might well be the dora’s Box, placing the lives of others effect of relaxation, persons.” State had a “profound and overwhelming interest in protecting the and overwhelming interest State had a “profound commitment life”: this was an express and solemn sanctity of all human 40.3.2.contained in Article guarantee In conjunction with the equality to valuing in Article 40.1, “it commits the State 34929-nde_28-1 Sheet No. 23 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 23 34929-nde_28-1 34929-nde_28-1 Sheet No. 24 Side A 05/07/2014 15:37:06 , 37 Carter It had 228 The U.S. Supreme Court in The U.S. Supreme For all these reasons, the For all 227 225 , the U.S. Supreme Court had 224 In particular, every appellate court had In particular, every note 131. The Irish Divisional Court also noted that in The Irish Divisional Court also noted 226 This concern was further supported, the U.S. This concern was further supported, Vacco v. Quill The U.S. Supreme Court had also noted that The U.S. Supreme Court had also 232 231 See supra 229 note 157. A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT A limited right to physician-assisted suicide was likely, A limited right to physician-assisted , [2013] I.E.H.C. at para. 81. 230 at para. 81. at para. 76. had noted the State’s interest in protecting vulnerable had noted the State’s at para. 81. . at para. 78. Id. Id. See supra Fleming Id. Id. Id. Id. Id Id. The court proceeded to consider the comparative legal authorities. the comparative proceeded to consider The court ences and elect to hasten death so as to avoid a sense of being a of being a sense so as to avoid death to hasten and elect ences and society. on family burden 232. 230. 231. 227. 228. 229. 225. 226. 224. 2014] be would, furthermore, liberalized system built into any The safeguards or well prove difficult and might to laxity and complacency vulnerable adequately. to police even impossible \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 37 7-MAY-14 15:32 in effect, a much broader license, which could prove extremely difficult in effect, a much broader license, which to police and contain. the companion case of between refusing lifesaving rejected the argument that the distinction by permitting everyone to treatment and assisted suicide was arbitrary: everyone from assisting refuse unwanted treatment, while prohibiting the state may fear that permitting assisted suicide would start it down the state may fear that permitting without consent.the path to euthanasia with and even If suicide was a man and woman and could not be right, it was a right enjoyed by every adults, and the decision of a duly limited to competent, terminally ill was for legal purposes the decision appointed surrogate decision maker of the patient. from the Netherlands, where Supreme Court had added, by evidence had disclosed 1,000 cases of eutha- the Dutch government’s own survey euthanasia of disabled neonates nasia without explicit request, and the and demented elderly. there was “near judicial unanimity” on the constitutionality of blanket unanimity” on the constitutionality there was “near judicial suicide. bans on assisting persuaded the the considerations which had stressed as compelling to uphold the law. Irish Divisional Court court held that the blanket ban satisfied the requirement of the requirement ban satisfied that the blanket court held proportionality. Smith in apart from the judgment of Justice It observed that, Glucksberg from abuse, the poor, the elderly, and the disabled groups, including and dying from and in protecting the disabled neglect, and mistakes, stereotypes, and societal indifference. prejudice, negative observed that the blanket ban “reflects and reinforces its policy that the blanket ban “reflects and reinforces observed that the be no less valued ill, disabled and elderly people must lives of terminally and that a seriously disabled than the lives of the young and healthy, interpreted and treated the same person’s suicidal impulses should be way as anyone else’s.” 34929-nde_28-1 Sheet No. 24 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 24 34929-nde_28-1 34929-nde_28-1 Sheet No. 24 Side B 05/07/2014 15:37:06 Rodri- 242 [Vol. 28 and that . at para. 84. Id 238 . Vacco 237 There was no half- and 235 Glucksberg ETHICS & PUBLIC POLICY While the Irish court thought it 241 . LAW, 233 On the question of proportionality, he of proportionality, On the question 234 Rodriguez it had observed that “the risks of abuse inher- it had observed that “the risks of abuse 239 ? Justice Smith The Irish Divisional Court noted that , the U.K.’s blanket ban on assisting suicide, conclud- , the U.K.’s blanket ban on assisting 240 was decided, and amply warranted Justice Sopinka’s concern about The Irish court observed that Justice Sopinka’s analysis The Irish court observed , [2013] I.E.H.C. at para. 92. , [2013] I.E.H.C. at para. 118. Carter 236 Pretty at para. 90. Evidence about the failure of Dutch control, including the first at para. 109. at para. 87. . at para. 83. its entire agreement with The Irish Divisional Court expressed Rodriguez NOTRE DAME JOURNAL OF Fleming Id. Fleming Id. Id. Id. Id. Id. Id What of It noted also that the European Court of Human Rights had It noted also that the European Turning to the decision of the Canadian Supreme Court in Court Supreme Canadian of the decision to the Turning , the Irish Divisonal Court noted that Justice Sopinka had held that Sopinka had held noted that Justice Divisonal Court , the Irish 242. 241. 235. 236. 237. 238. 239. 53 Eur. Ct. H.R. 33 (2011). 240. 234. 233. Haas v. Switzerland Dutch survey disclosing the 1,000 cases of non-voluntary euthanasia in 1990, was available well before the “worrisome” trend the evidence revealed. Rodriguez v. British Columbia (Att’y Gen.) [1993] 3 S.C.R. 519, 603 (Can.). And, as we shall see, the subsequent evidence persuaded the Irish Divisional Court to agree not with Justice Smith but with Justice Sopinka. the views of the U.S. Supreme Court it quoted from the views of the U.S. Supreme Court it quoted had given two reasons for holding the Canadian ban to be unconstitu- had given two reasons for holding the proportionality analysis, and evi- tional: subsequent development in the laws which had not been available dence from jurisdictions with relaxed to the Supreme Court in ing that “[c]lear risks of abuse do exist, notwithstanding arguments as ing that “[c]lear risks of abuse do exist, protective procedures,” to the possibility of safeguards and 38 a long- following had noted, Court Supreme was, the the law suicide, distinction. rational and standing \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 38 7-MAY-14 15:32 guez affirmed, in of the proportionality issue concurred with its own. of the proportionality the blanket ban had a “clearly pressing and substantial legislative objec- legislative pressing and substantial ban had a “clearly the blanket life, a to protect human for and the desire in the respect tive grounded Charter value.” fundamental to assisted suicide cannot be ent in a system that facilitates access underestimated.” had observed that to introduce an exception would create inequality, an exception that to introduce had observed support the the- to create exceptions had tended to and that attempts to prevent slope”: “The formulation of safeguards ory of the “slippery fears that a relax- unsatisfactory and has failed to allay excesses has been the protection standard set by the law will undermine ation of the clear to abuses of the exception.” of life and will lead would be inappropriate to comment on the first, it did address the sec- would be inappropriate to comment ond. been presented to Justice Smith, In light of the evidence that had her analysis and conclusions. and to it, the court disagreed with way house, he had concluded, which would achieve the legislation’s concluded, which would achieve way house, he had of the lives of purpose extended to the protection purpose because the choosing death, partly by discouraging them from the terminally ill, could be made was no assurance that the exception and because there ill and genuinely of life to those who are terminally to limit the taking desire death. in 34929-nde_28-1 Sheet No. 24 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 24 34929-nde_28-1 34929-nde_28-1 Sheet No. 25 Side A 05/07/2014 15:37:06 39 247 Secondly, 246 244 deaths) were all Further, the evidence 250 It added: The Divisional Court con- 245 252 The latter involved active participation in the participation in involved active The latter A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT 243 deaths which took place in the entirety of Flanders deaths which took Justice Smith had also noted that evidence was given that Justice Smith had also noted that evidence all 248 at para. 103. at para. 102. (emphasis in original). at para. 97. at para. 96 (emphasis in original). at para. 94. at para. 93. . . at para. 99 (emphasis in original). In short, observed the Divisional Court, the evidence showed In short, observed the Divisional Court, Id Id. Id. Id. Id. Id Id. Id. Id. Id. Her finding that relaxation of the law did not disproportion- Her finding that relaxation of the 249 251 First, it was true that similar issues of informed consent attended, of informed issues that similar it was true First, euthanized without having given their explicit consent. euthanized without Neither the evidence tendered at the hearing before us or the tendered at the hearing before Neither the evidence Lynn Smith J. regarding contemporary evidence given before as Netherlands or Belgium can be regarded practice in either the but that After all, it was not in dispute encouraging or satisfactory. in 2005—the for the for which the latest data is available year Netherlands—560 0.4% of patients (some 251. 252. 250. 249. 248. 246. 247. 244. 245. 243. deaths.” Moreover, the corresponding figure for Belgium was apparently higher, figure for Belgium was apparently Moreover, the corresponding “as 1.9% of was also high: “almost 1% of The corresponding figure for Switzerland all 2014] were without explicit request.” between June and November 2007 \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 39 7-MAY-14 15:32 that the incidence of non-voluntary euthanasia in the Netherlands, that the incidence of non-voluntary high.” Belgium, and Switzerland is “strikingly as the elderly or those with disabili- ately impact vulnerable groups such evidence, as well as the evidence ties had to be measured against this disabled neonates were not infre- (apparently accepted by her) that quently euthanized in the Netherlands. on the one hand, the decision of a seriously ill patient to refuse life- to refuse patient ill of a seriously decision the one hand, on the suicide. other, physician-assisted on the and, treatment sustaining How- Divisonal the reasons the there, since for similarity ended ever, the and defining” difference an “enormous set out, there was Court had the two. between in some cases euthanasia without request is lawful in the Nether- in some cases euthanasia without lands. intentional killing of another, even if freely consensual. even if freely killing of another, intentional before Justice Smith also showed that “family burden” was more often before Justice Smith also showed that euthanasia, and that non-voluntary cited as a reason for non-voluntary of the elderly who were in a coma euthanasia predominated in respect of the vulnerable groups most at or demented, that is, “precisely one risk.” the Court cannot at all agree cluded, “Against that general background, that the risks inherent in legally with [Justice Lynn Smith’s] finding in jurisdictions such as permitted assisted death have not materialized the Divisional Court could not agree that the accumulated evidence the accumulated not agree that Court could the Divisional that “the supported Justice Smith’s conclusion from other jurisdictions in the legally permitted death have not materialized risks inherent in have been predicted.” manner that may 34929-nde_28-1 Sheet No. 25 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 25 34929-nde_28-1 34929-nde_28-1 Sheet No. 25 Side B 05/07/2014 15:37:06 Carter notes Belgian [Vol. 28 note 116. , BBC (Feb. The Divi- However, For criticism See supra supra Id. 254 259 No appellate court had Organs of those killed by euthanasia 257 ETHICS & PUBLIC POLICY Deaf Belgian twins end lives as they start going The court went on that, while it while on that, court went The , BBC (Oct. 2, 2013), http://www.bbc.com/ LAW, 253 Simon Caldwell, See 255 Belgian parliament votes through child euthanasia . the judgment of the Irish Supreme Court, (June 14, 2011); Cf ELEGRAPH , [2013] I.E.H.C. at para. 105. , [2013] I.E.H.C. at para. 104. T Although this Article is concerned with the evidence presented in Although this Article is concerned with the at para. 122. at para. 119. at para. 120. . at para. 104. Even if it is true, the court added, that the incidence of non- . at para. 104. Even if it is true, the court added, AILY 256 , it is worth noting that the euthanasia experience in Belgium has since been , it is worth noting that the euthanasia experience NOTRE DAME JOURNAL OF . The court was “prepared to allow” that insofar as the blanket The court was “prepared to allow” Id. Id. Id. Fleming Id. Fleming Id , D 258 The Divisional Court noted that the preponderance of judicial noted that the preponderance The Divisional Court In fact, it might well be said that this is altogether too sanguine a that this is altogether might well be said In fact, it level of legally such a strikingly high that the fact that view and such as explicit request occurs in countries assisted deaths without official and Switzerland without any obvious Belgium, Netherlands in speaks for itself as to the risks involved or even popular concern any such liberalisation. , BBC (Jan. 16, 2013), http://www.bbc.com/news/world-europe-21039064; , BBC (Jan. 16, 2013), http://www.bbc.com/news/world-europe-21039064; 259. 258. 257. 255. 256. 254. 253. Fleming being used attracting increasing publicity, concerning the use of organs from euthanized patients; attracting increasing publicity, concerning the person; and the enactment of legislation to the euthanasia of deaf twins; of a transsexual permit euthanasia for children. and news/world-europe-24373107; helped to die after three sex change operations 13, 2014), http://www.bbc.com/news/world-europe-26181615. voluntary euthanasia has significantly declined since the law was relaxed. voluntary euthanasia has significantly declined declined since legalization. of the claim that the incidence has in fact 177–81. blind The Divisional Court preferred the reasoning of Justice Sopinka in preferred the reasoning of Justice The Divisional Court Rodriguez 40 the Netherlands.” and Belgium \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 40 7-MAY-14 15:32 ban failed to make separate provision for persons in the plaintiff’s posi- ban failed to make separate provision account of the physical disability tion by creating no exception to take steps which the able-bodied could which prevented her from taking the 40.1 was engaged. take, the precept of equality in Article opinion in the United States, Canada, the United Kingdom, and the States, Canada, the United Kingdom, opinion in the United a blanket ban Human Rights had been to uphold European Court of set out. the same reason as it had for the same or substantially “Specifi- impossible effec- has shown that it would be all but cally, experience guard against the lives of vulnerable persons and to tively to protect the risks of abuses were the law to be relaxed.” agreed with her that scrutiny of physician-assisted suicide would have to have suicide would physician-assisted of that scrutiny with her agreed than more that, herself acknowledged she level,” the highest be “at safe- with essential of the law, compliance after relaxation thirty years ideal level.” was “not yet at an the Netherlands guards in upheld the claims of a litigant in the plaintiff’s position because it was upheld the claims of a litigant in the to the needs of a plaintiff such as impossible to craft a solution specific essential fabric of the legal system, Ms. Fleming without jeopardizing an compromising these protections namely, respect for human life, and who sorely need such protec- for others and other groups of individuals tions. for all the reasons it had given for rejecting her claim under Article for all the reasons it had given for sional Court added: sional Court 34929-nde_28-1 Sheet No. 25 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 25 34929-nde_28-1 34929-nde_28-1 Sheet No. 26 Side A 05/07/2014 15:37:06 41 Flem- Cruzan v. However, 262 exercises of autonomy all that the State shall “protect that the State shall 261 In that case, the Supreme 263 264 . that This is not to suggest . the requirements of that Article. the requirements Carter do so, at least if it is to comply with Article do so, at least if it is to comply with implements that because the United Kingdom’s ban on assisting that because the United Kingdom’s ban on The decision of the Divisional Court was of the Divisional The decision must 260 Pretty the lives of citizens from unjust attack, not only the lives of citizens confirms the eccentric and erroneous nature of erroneous nature the eccentric and confirms the State prohibit assisting suicide, there is a the State prohibit assisting suicide, may A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT text accompanying note 200. European Court of Similarly, the Fleming protects note 196. , [2013] IEHC 2 at para. 54 (citing Cruzan v. Dir., Mo. Dep’t of Health, , [2013] I.E.H.C at para. 122. Fleming See supra See supra Fleming Demonstrating an impressive familiarity with the comparative legal the comparative familiarity with an impressive Demonstrating 264. 263. 261. Fleming v. Ireland [2013] I.E.S.C. 19. 262. 260. is itself free from difficulty. is itself free from rights First, it held that the plaintiff’s 497 U.S. 261 (1990)). suicide prevented the applicant from exercising her choice to avoid what she considered suicide prevented the applicant from exercising court was “not prepared to exclude “that the would be an undignified end to her life, the her private life under Article 8(1) of the ban interfered with her right to respect for European Convention. Pretty v. United Kingdom, 35 Eur. Ct. H.R. 1, para. 67 (2002). The Law Lords were on surer ground in holding that there was nothing in Article 8(1) to suggest that it protected the choice to live no longer. R. (Pretty) v. Dir. of Pub. Prosecu- tions, [2001] U.K.H.L. 61, para. 23 [2002] 1 A.C. 800. Human Rights reasoned in Article 40.1 provides, “All citizens shall, as human persons, be held equal before the law. Article 40.1 provides, “All citizens shall, as human shall not in its enactments have due regard This shall not be held to mean that the State and of social function.” to differences of capacity, physical and moral, 2014] justified. amply treatment differential the it considered 40.3.2, There an the law permitting between difference a profound moreover, was, that person to assist another sanctioning life and own to take their adult own life. to take their \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 41 7-MAY-14 15:32 authorities and with the empirical evidence, the judgment of the Divi- the judgment of evidence, and with the empirical authorities in sional Court the judgment of Justice Smith in the judgment of Justice ing on assist- were engaged by the State’s prohibition under Article 40.3.2 prohibition then required justification. ing suicide, which affirmed by the Supreme Court of Ireland. by the Supreme Court affirmed Court assumed that there is a liberty to refuse unwanted medical treat- Court assumed that there is a liberty ment. exercises of autonomy. The law rightly protects such But an as best it may from unjust attack and, in the case of injustice done, unjust attack and, in the case as best it may from of every citi- person, good name, and property rights vindicate the life, zen.” The ban court showed a freely wish to die (for whom the those who may not but even those who may.commendable concern) court did not The an important that, while autonomy is indeed appear to appreciate not human capacity, and part of our dignity, certainly not those aimed at self- engage constitutional protection, and selling oneself into slavery . . .). destruction (or self-mutilation, or Indeed, not only strong argument that it Director, Missouri Department of Health 40.3.2 and protect the life of each citizen from unjust attack; with Arti- 40.3.2 and protect the life of each citizen in its laws to respect, and, as cle 40.3.1, by which the State guarantees and vindicate the personal rights far as practicable, by its laws to defend which guarantees the equality of of the citizen; and with Article 40.1 each person before the law. of the comparative authorities, In its review U.S. Supreme Court in the court cited the decision of the the ban on assisting suicide the ban on assisting it will be recalled, Article 40.3.2 provides, 34929-nde_28-1 Sheet No. 26 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 26 34929-nde_28-1 34929-nde_28-1 Sheet No. 26 Side B 05/07/2014 15:37:06 265 [Vol. 28 failed not because is that the Divisional is that the is profoundly flawed. Fleming . Carter Fleming ETHICS & PUBLIC POLICY LAW, ONCLUSIONS C assistance in suicide, but because it would assistance in suicide, assistance in suicide active is authority for the former, not the latter. for the former, is authority legal pro- A text accompanying notes 201, 244. text accompanying note 259. intentional The fragile nature of such reasoning was explained in Part The fragile nature of such reasoning Cruzan NOTRE DAME JOURNAL OF 266 See supra See supra A second and overlapping criticism of and overlapping A second The judgment of Justice Lynn Smith in The judgment of Justice Lynn Smith The judgment’s analysis of the regulation of euthanasia and assist- A third criticism is that the court was “prepared to allow” that inso- that the court was “prepared to allow” A third criticism is 265. 266. it would have involved it would have involved have involved This was mistaken. relating to the For the key to understanding the law and fore- life is the distinction between intention protection of human between acts and omissions.sight, not the distinction Assisting suicide but not always. often involve the taking of active steps, (and euthanasia) have held that the claim in The court should 42 too burden- futile or which is refuse treatment choice to autonomous from is quite different the law) by protected historically (a choice some by prohibited historically (a choice to kill oneself helped to be a choice the law). with a long-recognized would conflict on refusing treatment hibition long- with no right, suicide conflicts on assisting right; a prohibition or otherwise. recognized \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 42 7-MAY-14 15:32 treatment and distinction between the right to refuse Court treated the of “the taking of to assistance in suicide in terms the claimed right of another. third party to bring about the death active steps” by a It fails accurately to articulate or to affirm the fundamental legal princi- It fails accurately to articulate or to which has long provided an ple of the inviolability of life, a principle line, historically endorsed by ethical, intelligible, and workable bright medical ethics, prohibiting the the criminal law and by professional lives and the intentional assistance intentional shortening of patients’ or encouragement of suicide. the key distinction between By blurring the shortening of life, the trying to shorten life and merely foreseeing judgment and undermines that principle. both misunderstands Moreo- at its expense—anver, the principles the judgment adopts exaggerated of beneficence which deference to autonomy and an understanding living,” that some patients would be holds that some lives are “not worth “better off dead”—would both justify the ending of the lives of patients, broad range of cases.competent and incompetent, in a The judg- “slippery slope” argument is par- ment’s cursory dismissal of the logical ticularly difficult to defend. ing suicide, in those few jurisdictions with relaxed laws, is no sounder far as the blanket ban failed to make separate provision for persons in ban failed to make separate provision far as the blanket exception to take account of the the plaintiff’s position by creating no her from taking the steps which the physical disability which prevented of equality in Article 40.1 was able-bodied could take, the precept engaged. II of this Article. 34929-nde_28-1 Sheet No. 26 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 26 34929-nde_28-1 34929-nde_28-1 Sheet No. 27 Side A 05/07/2014 15:37:06 43 rejects a founda- proceeded by way of a sum- Carter Carter 268 at 735. Delivering the judgment of the Supreme Id. were fast-tracked. Fleming , Chief Justice Denham stated that the legislation prohibiting , Chief Justice Denham stated that the legislation illustrates the dangers of judges, not least in expe- illustrates the dangers of judges, not at para. 107. A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT and making mistaken factual findings, findings at odds making mistaken factual findings, text accompanying note 2. Fleming 269 Carter Carter Lord Goff stated: , [2013] I.E.H.C. at para. 2. were instituted on October 25, 2012, and the case was heard on December See also id. is very wide of the mark. is very wide of the In short, See supra 267 Bland Fleming Fleming In It is of course well known that there are many responsible mem- known that there are many responsible It is of course well be made who believe that euthanasia should bers of our society by legisla- could, I believe, only be achieved lawful: but that result a the democratic will that so fundamental tion which expresses ensure made in our law, and can, if enacted, change should be to appro- killing can only be carried out subject that such legalised priate supervision and control. 268. 789, 865 (H.L.) (Eng.). Airedale N.H.S. Trust v. Bland, [1993] A.C. Similarly, 267. 269. Both Reflecting this proper and prudent approach, the highest courts in Reflecting this proper and prudent 5, 2012. Court of Ireland in of competing and complex social and assisting suicide called for “a careful assessment an assessment which legislative branches of moral considerations.” She added: “That is government are uniquely well placed to undertake.” Fleming v Ireland, [2013] I.E.S.C. 19, para. 96. mary trial application and counsel were required to operate under “fairly short timelines.” Carter v. Canada (Att’y Gen.), [2012] B.C.S.C. 886, para. 114 (Can. B.C.). The proceed- ings in in Washington v. Glucksberg, 521 U.S. 702, 720 (1997), Chief Justice Rehnquist noted the in Washington v. Glucksberg, 521 U.S. 702, 720 a right to physician-assisted suicide; that judicial need for the utmost care in accepting the arena of public debate and legislative such acceptance would place the matter outside a right permitted the debate to continue, “as action, and that the court’s rejection of such it should in a democratic society.” Canada, the United States, England, and Ireland, together with the Canada, the United States, England, have deferred to legislatures to European Court of Human Rights, resolve a matter—involving judg- as it does questions of ethics, clinical ment, and social policy—that is paradigmatically suited to legislative deliberation. dited hearings, 2014] principle. and ethical of legal its analysis than the of experience The of key guide- breach widespread discloses and Belgium Netherlands of non-vol- practice frequent least the not impunity, with virtual lines, untary euthanasia. respects are in significant in Oregon The safeguards car- surveys the sort of comprehensive and Oregon awaits even laxer, failure the persistent which have exposed the Dutch, surveys ried out by voluntary euthanasia. to cabin of their guidelines key Justice Smith’s “can of decriminalization that the risks the evidence shows finding that safe- through carefully-designed, well-monitored be very largely avoided guards” \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 43 7-MAY-14 15:32 tional ethical principle of the criminal law and misrepresents the of the criminal law and misrepresents tional ethical principle in those few juris- reality of practice disturbing and widely-recognized abandoned it. dictions which have with those of expert committees. are not constrained by Legislatures urgency of an individual case the circumstances, not least the possible and the expertise of individual counsel. They are also able to appoint expert committees to assist their deliberations. The dangers of judges by the reluctance of appellate deciding the issue are only compounded of fact.courts to review a trial judge’s findings Chief Justice Finch 34929-nde_28-1 Sheet No. 27 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 27 34929-nde_28-1 34929-nde_28-1 Sheet No. 27 Side B 05/07/2014 15:37:06 [Vol. 28 273 been a has They remarked that But, as we will recall, 271 While one shares their While one shares 274 (Apr. 21, 2010, 11:42 PM), http:/ 272 EWS ETHICS & PUBLIC POLICY , CBCN LAW, The erroneous nature of the key fac- nature of the The erroneous 270 is palpable and overriding but, had it been less so, but, had it been less and overriding is palpable that, while findings based on social and legislative social and on based while findings that, the possibility of granting a constitutional exemption the possibility of Carter , [2013] B.C.C.A. at para. 333. Carter obiter at para. 334. at para. 326. Assisted suicide voted down by MPs NOTRE DAME JOURNAL OF Carter Id. Id. Secondly, Justices Newberry and Saunders claimed that the prohi- Secondly, Justices Newberry and Saunders In the Court of Appeal, Justices Newberry and Saunders briefly Justices Newberry and Saunders In the Court of Appeal, First, would it be proper for a statute enacted by the democrati- First, would it be proper for a statute 273. As recently as 2010, “Bill C-384,” a private member’s bill to decriminalize 274. 272. 270. at para. 151. Carter v. Canada (Att’y Gen.) [2013] B.C.C.A. 271. /www.cbc.ca/news/canada/assisted-suicide-voted-down-by-mps-1.910839. euthanasia and physician-assisted suicide, was rejected by the Canadian Parliament by 228 votes to 59. facts together with the testimony of live witnesses are not subject to the subject to are not witnesses of live testimony with the together facts are they on review, standard error” overriding and “palpable ordinary level of deference. owed some 44 in observed \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 44 7-MAY-14 15:32 bition against assisting suicide is concerned with the protection of the bition against assisting suicide is concerned for those who are clear- vulnerable and that “[l]ifting the prohibition by medical opinion, rational minded, supported in their life-expectancy protected by a court process, might and without outside influence, and . . .” not undermine the legislative intention. in the case of “a generally sound law that has an extraordinary, even generally sound law that has an extraordinary, in the case of “a small number of individuals.” cruel, effect on a tual finding in tual finding of her reversed because not been Justice Smith’s judgment and had an not difficult to imagine it is of disproportionality, misunderstanding deference. court granting it appellate judge’s flawed interpre- A single had the most evidence could then have tation of the empirical and society. for Canadian law, medicine, profound consequences considered sympathy for those whose suffering cannot be completely alleviated by whose suffering cannot be completely sympathy for those suggestion that medicine and social support, their modern palliative problematic. constitutional exemption is highly this might justify a as constitutional by the courts, to cally-elected legislature, and upheld a “small number” of cases?be nullified by the courts, even in Moreo- make exceptions, not least when ver, what would qualify the courts to for society, implications an ade- any exception has grave implications familiarity with the arguments quate understanding of which requires in Canada and beyond, which and evidence canvassed by expert bodies, and which have overwhelmingly have exhaustively considered the issue exception?decided against the making of any Further, although Jus- that the issue has been repeatedly tices Newberry and Saunders claimed one way or another,” does not raised in the legislature “without result plain fact that there this claim simply close its eyes to the result: the repeated rejection of attempts to create exceptions? result: the repeated rejection of attempts the purpose of the prohibition on assisting suicide is not only to protect the purpose of the prohibition on assisting the issue of physician-assisted suicide has surfaced repeatedly in Parlia- suicide has surfaced repeatedly the issue of physician-assisted one way or another.” ment “without result 34929-nde_28-1 Sheet No. 27 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 27 34929-nde_28-1 34929-nde_28-1 Sheet No. 28 Side A 05/07/2014 15:37:06 45 Carter for overruling Carter , a decision the soundness of which has been , a decision the soundness of which A RIGHT TO VOLUNTARY EUTHANASIA? VOLUNTARY TO A RIGHT text accompanying notes 120–31. Rodriguez 275 See supra Thirdly, could a constitutional exemption be limited to a “small to be limited exemption a constitutional could Thirdly, limits of any aside the problem of defining the Fourthly, leaving of Justice Smith in In conclusion, nothing in the judgment 275. 2014] all, “vulnera- lives of of the inviolability affirm the it is to the vulnerable: or not. ble” it. \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 45 7-MAY-14 15:32 (or in the dissenting judgment of Chief Justice Finch in the Court of (or in the dissenting judgment of of Canada cause to overrule its Appeal) should give the Supreme Court decision in number” of individuals? Are there not numerous individuals, with suf- individuals, there not numerous of individuals? Are number” of life- varying degrees degrees, and with various types and fering of life- the longer one’s be more protracted (suffering will expectancy an exemption? who might claim expectancy), crite- According to what and the the “deserving” between the judges distinguish ria would “undeserving”? who requested an exemption And, if certain individuals deny an exemp- suffering were accommodated, why on account of their (or greater) person suffering to the same tion to an incompetent on their behalf? applied for an exemption extent, whose representative only when sanc- euthanasia in practice be performed exemption, would tioned by a court? the “light touch” If many Dutch doctors ignore even many Canadian of them, why should we expect regulation required the more formal, themselves, and their patients, to doctors to subject by constitutional arduous process of euthanasia time-consuming, and exemption? escapes mechanism of a constitutional exemption The have been identi- to relaxing the law which none of the key objections which ground statutory blanket fied by expert committees, objections bans which have been repeat- bans on euthanasia and assisting suicide, edly upheld by appellate courts. is significantly reinforced by repeatedly affirmed, and whose soundness in the manifest unsoundness of the argumentation 34929-nde_28-1 Sheet No. 28 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 28 34929-nde_28-1 34929-nde_28-1 Sheet No. 28 Side B 05/07/2014 15:37:06 \\jciprod01\productn\N\NDE\28-1\NDE101.txt unknown Seq: 46 7-MAY-14 15:32 34929-nde_28-1 Sheet No. 28 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 28 34929-nde_28-1