It has been 17 months since the Supreme Court of Canada determined that the Criminal Code’s complete ban on assisted suicide was unconstitutional. Since that time, Canadians have wrestled with how best to respond to the decision with a new regulatory regime. Every week, it seems, has brought with it a public call to further “broaden access” to assisted suicide.
The recently passed Bill C-14 (Parliament’s response to Carter v Canada (Attorney General), 2015 SCC 5) contemplates that in the near future a patient may not even need to be an adult, suffering from a physical illness, or mentally competent at the time they are euthanized.1 Even still, the bill has been criticized for being too restrictive in requiring that a patient’s natural death be at least “reasonably foreseeable”. Pro-euthanasia advocates have called for scrapping this requirement in favour of making euthanasia available to those who are not dying or terminally ill (and the Senate adopted such an amendment, although it was ultimately rejected by the House of Commons).
It seems we have all but forgotten the stringent conditions imposed by the trial judge in Carter, including the requirement that the plaintiff, Ms. Taylor (who had advanced ALS), be terminally ill and near death with no hope of recovering before her physician could cause her death. Similarly, the Supreme Court of Canada’s repeated statements that its decision was limited to the facts of Ms. Taylor and people in her position have not been given due weight.2 And it is worth remembering that the Supreme Court said in 2001: “Killing a person — in order to relieve the suffering produced by a medically manageable physical or mental condition — is not a proportionate response to the harm represented by the non-life-threatening suffering resulting from that condition.”
Our discourse has shifted drastically. In just over a year, we’ve gone from talking about euthanasia for terminally ill, near-death, physically debilitated patients with no hope of recovery, to teenagers with clinical depression.3 This is why permitting “medical aid in dying” at all is problematic. It transforms our conception of suicide from “a tragedy we should seek to prevent to a release from suffering we should seek to assist.”4 And the more we expand the “medical aid in dying” regime, such as by extending it to individuals who are not dying, the more we will normalize suicide (assisted or not) in practice.5
What is the difference between someone who ends their own life because it has become intolerable to them and someone who has a doctor do it for them for the same reason? How can we continue to seek to discourage the former, while we pay for and provide the latter as “health care”?
These are the difficult issues we are forced to confront in a post-Carter Canada, and that were not addressed in the Supreme Court’s ruling. Part of the reason for their absence in the Court’s decision was its narrow reading of the purpose of the assisted-suicide ban. The Supreme Court determined that the law’s sole objective was “preventing vulnerable persons from being induced to commit suicide at a time of weakness”, despite submissions from the Attorney General6 and interveners7 that the law had other objectives, including preventing suicide and upholding the inviolability of life.
Sidelining those considerations was perhaps a luxury that the Supreme Court of Canada could enjoy in adjudicating fact-specific legal questions arising from an individual’s Charter claim. But Parliament – and indeed, all of us as members of the collective responsible for this regime – do not have this luxury. We must examine this issue not solely through the lens of an individual’s fact-specific Charter claim, but as one that has broad and far-reaching societal and ethical implications that “are not suited to resolution by a court on affidavit evidence at the instance of a single individual.”8 Prudence demands that we consider the broader implications that were not addressed by the Court.
The Social Impact of Suicide
If the choice to live or die is solely the individual’s to make, why have attempted suicide, assisted suicide, and consensual homicide long been considered legal offences in Canada and other countries?
First, it is a foundational principle of Canadian law that the lives of all persons have equal and inherent worth – despite the many inequalities that may exist among persons (in physical and mental ability, for example).9 As a result, our laws have historically upheld the inviolability of life: the principle that the intentional and premature taking of another human life is “intrinsically morally and legally wrong”, no matter whose life it may be.10
Second, suicide is not just an individual issue. It is a societal issue. It affects those the victim leaves behind.11 Even when the most socially isolated person commits suicide, though she may have neither friend nor family member to grieve her, we consider it a societal failure. We do not shrug it off as her choice.
Implications for the “Assister”
The same is true when it comes to assisted suicide. Its impact extends beyond the victim and the assister, but it is worth pausing to consider the impact on the assister. Unlike suicide, with assisted suicide the act itself, not just its effects, is intrinsically social because another person is involved. The assister is morally responsible as a participant in another’s death. To help someone kill herself is to fail to help her in some other, life-affirming way, and to rob others of the chance to do the latter. Then there are the potentially damaging psychological effects of the act itself to consider—even anticipating euthanizing a person can cause severe stress.
Broader Societal Considerations
Zooming out further, we should consider the implications of legalized “assisted death” for society. In an interview with the CBC, Jean Vanier, the founder of L’Arche communities for the disabled, was asked how lawmakers should approach the issue of “assisted death” in light of the fact that the Charter grants rights to individuals and the issue has been framed as a matter of individual rights. He replied:
People can go through periods of just depression, fatigue, loneliness, so we mustn’t go too quickly to just say there’s a legal right; they also have a legal right to be walked with, accompanied, and helped. I hear what you’re saying, that everybody is independent. Of course. We’re also all interdependent, we need all to be loved in order to find the beauty of life […]. […]
[L]awmakers should also realize that the human being – we’re born in weakness and we die in weakness and that we’re all vulnerable and that we all always need help. Society needs to encourage opening our hearts to those who are weaker and more fragile. There’s something in society that’s going wrong when we’re thinking all the time that people have to be perfectly independent or perfectly strong, when in reality, my God, we need each other, we need help, we need good doctors, we need old people’s homes that are caring […]. […]
All legislation is not just independence; all legislation is to help people to become more human and to help them to become fully alive in various situations, fully alive as they grow older, […] fully alive also in sickness or cancer or whatever it is, to help people hold onto the beauty of life. We can help each other to become more human.
In contrast to Mr. Vanier’s statements above, the Supreme Court’s analysis in Carter was based on an individual rights claim and consequently highly individualistic. The Supreme Court in Carter accepted Ms. Taylor’s evidence that because she had a “rational and persistent” wish to die she was therefore not vulnerable. But should our only concern be that “assisted death” is “chosen”? Is a person not vulnerable provided she has a “rational” and persistent wish to die?
Dr. Margaret Somerville, founding director of the Centre for Medicine, Ethics, and Law at McGill University, challenges that view. The very notion that suicide is freely chosen so long as the person is competent and not subject to coercion or undue influence represents an extremely myopic understanding of human vulnerability. As Dr. Somerville explains, the Court failed to consider what is necessary to protect all of us as vulnerable people by upholding “respect for life” in society as a whole.
Indeed, the Supreme Court’s narrow framing of the law’s objective effectively sidelined broader ethical and societal concerns. A person’s desire to receive assistance to commit suicide may be the result of a complex web of factors or influences - internal and external, interpersonal, familial, institutional, and cultural - that the Court did not and could not adequately take into account. We are interconnected, not autonomous. Others’ attitudes shape our own, and vice versa. National laws and policies are both shaped by, and shape, people’s views. Publicly funded euthanasia, for example, sends the message that euthanasia is not only an acceptable practice, but a social good.
When people embrace the message that euthanasia is a social good, we should expect their views on other matters to change as well. If euthanasia is accepted as a social good, what might we eventually think about costlier alternatives to euthanasia? As it is, just 16 percent of terminally ill Canadians have access to quality palliative care. If “assisted death” is a “dignified” way to die when your strength is declining and your dependence increasing, what will we think about those who choose to continue to live in a state of total dependence on others?
It should not surprise us that various disability rights organizations oppose making “assisted death” broadly available, and some oppose legalizing it at all. A long list of such organizations have endorsed the Vulnerable Persons Standard (VPS), for example, which calls for limiting “assisted death” eligibility to those who are in an advanced state of weakening capacities, with no chance of improvement, and at the end of life.
For all of these reasons, it also should not surprise us that many physicians do not regard assisted suicide or euthanasia as health care at all, and some have warned that legalizing such practices undermines longstanding principles of medical ethics and risks eroding public trust in the profession.12
If “assisted suicide” is a “dignified” way to die, then why not unassisted suicide? Robert-Falcon Ouellette, an indigenous Canadian and Member of Parliament, has taken a stand against legalizing assisted suicide for just this reason: it sends a message that suicide is a solution to suffering. He shared his personal story of contemplating suicide as a six-year old boy and reflected that if his elders had opted for assisted suicide, he might not have chosen life for himself:
||If grandma, grandfather decides they had enough in life […] if they weren’t able to carry on, why should I carry on? If they weren’t strong enough, why should I be strong enough? I think that is a question that is asked in Attawapiskat more often than not […].
A study published in the Southern Medical Journal in October 2015 indicates that general suicide rates have increased in each American state that has legalized assisted suicide.
Another study reveals that the number of reported (and, likely, unreported) cases of euthanasia carried out in Belgium (which legalized the practice in 2002) has steadily increased - from 347 in 2004 to 1,926 in 2014.13 Moreover, the rate of requests for euthanasia that are granted in Belgium also appears to have gone up, from 56.3% in 2007 to 76.8% in 2013.14 In a detailed review of Belgium’s empirical data, Professor Trudo Lemmens concludes that there exists “a growing comfort level among physicians in granting requests and in actually performing euthanasia.”15 And once active life-ending decisions become part of medical practice, it also “leads to a normalization even in situations that go beyond those where [physician assisted death] was seen to be a compassionate response (i.e. to significant physical suffering at the end of life).”16
Suicide must not become the “new normal” as a medical response to suffering. We must support the efforts of health care providers and others to prevent suicide (whether medically assisted or otherwise) and promote treatment.17 However, we fear that suicide prevention efforts may come to be perceived as undermining the so-called “right”18 to assisted suicide. In Quebec, for example, the College of Physicians recently discovered that physicians were allowing suicide victims to die when life-saving treatment was available. The legalization of assisted death was cited as creating ambiguity about the need to intervene in such cases.
In light of the Carter ruling, do concerns about social attitudes towards the sick, the normalization of suicide, and the erosion of medical ethics have any place when it comes to law making? Were these matters rendered irrelevant by Carter? Thankfully not. Such concerns were sidelined because the Court examined only the very narrow question of whether or not a complete ban on assisted suicide was necessary in order to protect vulnerable persons from being induced to commit suicide in a moment of weakness.
Our collective task now is to consider not only individual rights, but also the common good, which entails more than ensuring that people comply with a set of rules and obtain informed consent before killing someone or aiding their suicide. We must concern ourselves with combatting the inclination towards and social acceptance of suicide generally, assisted or not.
Christian Legal Fellowship’s position, as reflected in its interventions at all three levels of court in Carter, is that a complete prohibition on assisted suicide and euthanasia is the only sure way of achieving this objective, as well as countering negative perceptions about the quality of life of persons who are elderly, ill or disabled, and protecting the vulnerable from error and abuse. After all, the Supreme Court accepted in Carter that the risks to the vulnerable from legalizing assisted suicide could only be “very substantially minimized” by a “carefully designed system” imposing “strict limits that are scrupulously monitored and enforced”; it did not say those risks could be eliminated. Only a complete prohibition could do that.
Nevertheless, with Bill C-14 the government has taken the path towards legalizing assisted suicide and euthanasia. Contrary to much commentary that Bill C-14 is unconstitutional for making “medical aid in dying” too narrowly available, Parliament is entitled to enact a strict law.19 Allowing “assisted death” where natural death is not near, as Professor Emeritus Dianne Pothier points out, creates the risk of premature death for those who may have changed their minds if death had not precluded that option. It also precludes the use of new treatments discovered after the patient’s premature death that could have ameliorated their condition, as explored by Konrad Yakabuski.
In a recent speech in the Senate, Senator Murray Sinclair, a former judge, grasped well Parliament’s role in responding to Carter and its responsibility to expand its view beyond that court ruling:
||Suicide was not easily condoned in any nation, and we do not want a society to think that suicide is always an option. We certainly do not want others encouraging others to end their lives. […] As a matter of principle, we still believe that life ought to be sacred. Therefore, when we are asked to consider a bill which undermines that principle, we must proceed cautiously. Our obligation as senators is to ensure that this law protects the weak, the impressionable and the vulnerable from themselves if necessary but certainly from others. We must ensure that as a matter of principle taking one’s life is not undertaken easily.
Continuing the Conversation
Every person, no matter how old, disabled, or infirm they may be, has inherent and equal worth. For that reason, as Justice Sopinka recognized in Rodriguez, Canadian law has long recognized that the active participation by one individual in the death of another is “intrinsically morally and legally wrong”.20 That principle was not challenged or overturned in Carter – in fact, the Court affirmed that “sanctity of life” remains one of Canada’s “most fundamental societal values” - although Carter now allows for a legal exception in certain circumstances.
If we are going to permit assisted suicide in some circumstances, it does not mean we should allow it in all circumstances, celebrate it, encourage it, or strip away important procedural safeguards. Nothing in Carter requires this.
Nor should the national discussion about assisted suicide end once a new law is passed. We must continue to work towards solutions to better serve those who are suffering, ill, disabled, or elderly. We must continuously ask whether we are doing all we can to help ameliorate suffering and loneliness. We have let our fellow Canadians down if they reach the point where, because we have not supported them with the care and companionship they need, they feel their only solution is to end their lives. Hopefully, there is a fruitful conversation we can all have, regardless of our respective views on assisted suicide, about how to improve and protect the lives of those who need our support the most.
1 The Preamble to Bill C-14, includes a commitment to develop “a full range of options for end-of-life care… in which a person may seek access to medical assistance in dying, namely situations giving rise to requests by mature minors, advance requests and requests where mental illness is the sole underlying medical condition.” See Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), 1st Sess, 42nd Parl, 2016.
2 The Court addresses the rights of “people like Ms. Taylor” and “persons in her position”. In paragraph 127, the court explicitly states, “The scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.” See Carter v Canada (Attorney General), 2015 SCC 5, at paras 56, 65, 66, 111, 126, 127. See also Sikkema & Ross: Misreading Carter.
3 For example, the Report of the Special Joint Committee on Physician-Assisted Dying recommends that Parliament make assisted suicide available for those experiencing psychological suffering and that, within three years, Parliament also make assisted suicide available to “mature minors”.
4 Andrew Coyne, “Canada is making suicide a public service. Have we lost our way as a Society?” National Post, February 29, 2016.
5 See Trudo Lemmens, “The Conflict between Open-Ended Access to Physician-Assisted Dying and the Protection of the Vulnerable: Lessons from Belgium’s Euthanasia Regime for the Canadian Post-Carter Era” in Catherine Regis, Lara Khoury & Robert Kouri, eds., Key Conflicts in Health Law (Cowensville: Yvon Blais, 2016), pp. 261-317, as discussed further infra.
6 Carter v Canada (Attorney General), 2015 SCC 5 (Factum of the Respondent at paras 4, 5, 142, 147, 152, 156, 161).
7 Ibid (Factum of the Intervener, Christian Legal Fellowship at paras 3, 10, 16, 20, 23).
8 Rodriguez v British Columbia (Attorney General), 1993 CanLII 1191 (BCCA), at para 172.
9 Granovsky v Canada (Minister of Employment and Immigration),  1 SCR 703 at paras 54-58, 186 DLR (4th) 1.
10 Rodriguez v British Columbia (Attorney General),  3 SCR 519 at 601.
11 This is reflected in the preamble to Bill C-14 which says “Whereas suicide is a significant public health issue that can have lasting and harmful effects on individuals, families and communities”.
12 Most palliative care specialists, who dedicate themselves to maximizing the quality of life of patients facing life-threatening illness, wish to keep assisted suicide and euthanasia out of their discipline. A recent survey conducted by the Canadian Medical Association of its member physicians revealed that only 29% would even consider providing medical aid in dying if requested by a patient (and of those, even fewer would do so in cases of nonterminal illness (23%) or psychological suffering (19%)). The World Medical Association “strongly encourages all National Medical Associations and physicians to refrain from participating in euthanasia, even if national law allows it.” Prof. Kevin Fitzpatrick argues in the British Medical Journal that allowing euthanasia may further erode “what may already be a shaky sense of safety in medical care”. Patients need to feel safe in order to seek medical help. For further reading, see Ross & Sikkema: Assisted suicide: crime today, health care tomorrow?
13 Lemmens, supra note 3, at para 49. Figures from the Dutch Euthanasia Review Committee also show that euthanasia in the Netherlands has also steadily increased – by 76% since just 2010, with more than 5,500 reported cases in the country last year alone.
16 Ibid, at para 55.
17 Currently, there are over 50 Canadian organizations devoted specifically to suicide prevention and awareness with registered charity status, and these are just the ones that include the word “suicide” in their name.
18 Carter did not establish a freestanding or positive right to “assisted dying”. It “simply renders the [existing] criminal prohibition invalid” because the existing prohibition was found to be broader than necessary to advance the statutory objective of protecting vulnerable people from error and abuse.
19 As the Justice Department affirmed in its recent Report, Bill C-14 need not mimic the language of the Carter ruling. The constitutionality of any new law on euthanasia will not be determined by a simple comparison with the Carter judgement, but “will involve an assessment of the provisions of the Bill in light of its new and distinct purposes, as compared to the purposes of the total prohibition, and the legislative record.”
20 Supra, note 10.
Derek B.M. Ross, LL.B. (Western), LL.M. (Toronto), is the Executive Director of the Christian Legal Fellowship where he practices constitutional law and serves as Editor-in-Chief of the Christian Legal Journal. He also serves as an Executive Members of the Charity and Not-for-Profit Law Sections of both the Canadian Bar Association and Ontario Bar Association.
John Sikkema, J.D. (Queen’s), is Associate Counsel with Christian Legal Fellowship (CLF). John works on CLF’s judicial interventions, including its recent intervention at the Supreme Court of Canada in “Carter II”. His writing has appeared in the Naional Post and Policy Options. John currently serves as an Executive Committee Member of Advocates for the Rule of Law, a Canadian legal think tank.