Euthanasia Subject of Renewed Debate

This week the Quebec government opened public hearings on euthanasia and assisted suicide. The National Assembly selected the Select Committee on Dying with Dignity to travel to 11 towns and cities in Quebec to canvass public opinion on the various issues surrounding euthanasia and assisted suicide. The committee prepared a consultation paper (in French only) to help interested stakeholders understand expert opinions on the subject and facilitate an effective and fruitful debate. In addition, individuals who will not attend the public hearings may fill out the online questionnaire to express their views on the issue of dying with dignity.

Although the definitions vary, to clarify what euthanasia and assisted suicide mean, the Merriam-Webster dictionary defines euthanasia as the act or practice of killing or permitting the death of hopelessly sick or injured individuals (e.g., persons or domestic animals) in a relatively painless way for reasons of mercy. In countries where it is legalized, e.g., Belgium, a doctor administers a dose of lethal drug.

Assisted suicide comes down to helping someone to deliberately cause his or her death by providing the means or information on how to proceed, or both. In countries where assisted suicide is legalized, a physician prescribes a lethal dose of a drug and tells the person how to use it. The person is then free to decide when to perform the suicide.

Assisted suicide is different from euthanasia because in assisted suicide, it is the unwell person who ends her or his days.

The question of dying with dignity raises heated debate, especially when critical issues such as the legalization of euthanasia and assisted suicide pops up, but its scope is much broader. It include issues such as resuscitation, refusal and withdrawal of treatment, living wills, palliative care, sedation, religious beliefs and more. This simple list gives an idea of the magnitude of the subject. The values of dignity, personal autonomy, compassion and respect of the sanctity of life collide, bringing us to question our deepest convictions.

Over the weekend, many of my close friends and I were discussing why the Quebec debate is happening now and what impact it might have on the Criminal Code of Canada.

Basis for Quebec debate

The debate over dying with dignity resurfaces periodically in society. It gained prominence again in the fall of 2009 following statements from citizens, specialists and several investigations. Surveys on the subject were conducted by the Quebec Federation of Medical Specialists, Quebec Federation of General Practitioners, Angus Reid-La Presse and the Quebec College of Physicians. Quebec MPs seized the opportunity to launch an extensive public consultation, finding that the time had come to invite their citizens to reflect collectively on the subject and plan a course of action.

Moreover, in recent decades, Canadians’ attitudes in relation to death have changed. Because of medical advances, better living conditions and greater life expectancy, we die older. But dying older may mean we may suffer from diseases that lead gradually to a loss of autonomy and poor quality of life. In addition, aging can cause great loneliness, both physical and affective, which also constitutes a major obstacle to quality of life. So we must make difficult choices, and some believe that the government should facilitate such choices.

In 1992, the Quebec Superior Court ruled in the case of Nancy B., a woman suffering from an incurable disease, that turning off her respirator at her request, and letting nature take its course, would not be a criminal offence. That case and the reform of the Civil Code of Quebec reaffirmed the need to obtain informed consent from a fit person before invoking the person’s right to refuse care. A fit person is one who is capable of understanding the nature of her or his illness and the treatment proposed, the nature and purpose of the treatment, the risks and benefits of it and the consequences of a refusal or stopping treatment. The basic principle is that no person can be subjected to treatment without his or her consent, except in an emergency. This consent must be free and informed.

The Quebec Civil Code allows a person to refuse treatment, even though this decision may cause his or her death. It also allows a close relative of an incapacitated person to make such a decision.

Many individuals, experts and associations want the province of Quebec to follow the example of Belgium, which has allowed euthanasia under strict guidelines. Two US states, Oregon and Washington, have adopted laws to allow assisted suicide, while the Netherlands and Luxembourg have legalized euthanasia and assisted suicide. According to a recent Leger Marketing poll, more than 70 percent of Quebecers agree with the controversial practices and are in favour of legalizing them.

Even the Quebec College of Physicians, the province’s medical regulatory body, and the Federation of Medical Specialists are calling for guidelines for euthanasia in cases when a patient’s death is imminent and inevitable.

Margaret Somerville, director of the Centre for Medicine, Ethics and Law at McGill University, says she would not be surprised to see Quebec seek a constitutional challenge by arguing assisted suicide, although currently a federal criminal law matter, is a health care issue that falls under provincial jurisdiction.

What does the law say?

As it stands, euthanasia and assisted suicide are illegal under the federal Criminal Code, which applies in all provinces and territories including Quebec and cannot be amended by provincial/territorial enactment. However, it is up to the provinces and territories to enforce the law. As a result, decisions to proceed with criminal and penal prosecutions rest with each province and territory.

It should be noted that Canadian courts have made few rulings on euthanasia and assisted suicide.

The most controversial euthanasia case in Canada occurred after Robert Latimer killed his disabled 12-year-old daughter Tracy in 1993 by placing her in the family truck and then piping exhaust fumes into it. Tracy had a severe form of cerebral palsy, and could not walk, talk or feed herself. Latimer told the police that “his priority was to put her out of her pain.” The jury convicted him of second-degree murder, and sentenced him to life imprisonment with no possibility of parole for 10 years. However, in 1997, after several appeals and a conviction for jury tampering, in a decision that surprised most legal commentators, the sentencing judge found that a 10-year sentence was “grossly disproportionate” to the offence. He sentenced Latimer to two years less a day, half of which would be served in a provincial jail and half on his farm.

On appeal, the Saskatchewan Court of Appeal confirmed its earlier decision, and substituted the mandatory minimum sentence of 10 years, noting that it is always “open to Parliament to modify the existing law by appropriate legislation that establishes sentencing criteria for ‘mercy’ killing.” The Supreme Court of Canada granted Latimer leave to appeal on the grounds of whether the defence of necessity should have been left to the jury, whether the trial judge should have informed the jury that Latimer had the legal right to decide to commit suicide for his daughter as her surrogate decision-maker, and whether the minimum sentence for murder was cruel and unusual punishment in the circumstances, contrary to the Canadian Charter of Rights and Freedoms. In January 2001, the Court upheld the original conviction and the sentence. It did, however, note that section 749 of the Criminal Code provides for the royal prerogative of mercy, which is a matter for the executive, not the courts, to consider. In February 2008, the Appeal Division of the National Parole Board granted Latimer day parole.

Around the same time, another high-profile case led to a major constitutional challenge, and a very national debate on the topic of assisted suicide.

In 1992, Sue Rodriguez made a public request for assisted suicide by claiming that section 241 of the Criminal Code, which makes it an offence to aid or abet suicide, violated sections 7, 12 and 15 of the Charter. Rodriguez was suffering from amyotrophic lateral sclerosis, or Lou Gehrig’s disease. She argued that section 241 of the Code denied her rights to “life, liberty and security of the person”, which, in her view, included the right to control the method, timing and circumstances of death.

The British Columbia Supreme Court ruled that section 241 of the Criminal Code did not deprive Rodriguez of her right to life, liberty and security of her person, nor did it restrict her freedom of choice or affect her ability to make fundamental decisions about her life. In the Court’s view, it was the nature of her illness, not the legal system or the state, that deprived Rodriguez of the ability to carry out her wishes. The Court also concluded that section 241 does not discriminate against persons on the grounds of physical disability. Rodriguez appealed the decision all the way to the Supreme Court of Canada, which rejected her request.

The majority of the Supreme Court held that, although section 241(b) deprived Rodriguez of the security of her person, as guaranteed under section 7 of the Charter, the deprivation was justified because it accorded with principles of fundamental justice. Writing for the majority, Mr. Justice Sopinka noted that respect for life is a fundamental principle upon which there is substantial consensus in Canadian society. The prohibition against assisted suicide reflects this consensus and is designed to protect the vulnerable who might be persuaded to commit suicide. To allow physician-assisted suicide, he observed, would erode the belief in the sanctity of human life and suggest that the state condones suicide. Furthermore, concerns about abuse and the difficulty in establishing safeguards to prevent abuse make it necessary to prohibit assisted suicide.

The majority also refused to find that section 241(b) of the Criminal Code constituted cruel and unusual treatment under section 12 of the Charter.

Regardless, in 1994, Rodriguez decided to defy the law and take things in her own hands. Svend Robinson was charged in BC under the Criminal Code for providing a supportive presence during the suicide or euthanasia. Queen’s counsel, Robert Johnston, recommended not laying charges against Robinson. The case allowed BC’s attorney general to introduce guidelines regarding charges against persons who, out of compassion, help sick persons die. Under the guidelines, Crown counsel will approve a prosecution only where there is a “substantial likelihood of conviction and the public interest requires a prosecution.”

In determining whether a substantial likelihood of conviction exists, Crown counsel must classify the conduct of the person involved in the death, and the resulting consequences as “active euthanasia”, “assisted suicide”, “palliative care” or “withholding or withdrawing medical treatment”. The factors to be considered in characterizing such conduct include the provable intention of the person and, in cases involving physicians and their patients, the position of the Canadian Medical Association and expert medical opinions as to generally accepted ethical medical practices.

The public interest criterion involves a consideration of the following factors:

• Society’s support of proper professional and ethical standards for health care professionals
• Society’s interest in protecting vulnerable persons
• Society’s interest in protecting the sanctity of human life, while recognizing this does not require life to be preserved at all costs

According to the guidelines, palliative care and withholding or withdrawing medical treatment will not be subject to criminal prosecution when provided or administered according to accepted ethical medical standards. The common law recognizes the right of an adult, competent person to refuse medical treatment or to demand that treatment, once begun, be withdrawn or discontinued.

Unsurprisingly, a legal debate followed Rodriguez’s suicide. In February 1994, the Senate established a special committee to study the issues of euthanasia and assisted suicide. In June 1995, the committee released its report, Of Life and Death, which also canvassed a number of related issues including palliative care, pain control and sedation practices, withholding and withdrawal of life-sustaining treatment, and advance directives. Several other reports followed, but nothing came of them except for several private members’ bills that never passed. Another recent attempt (Bill C-384) to amend the Criminal Code to legalize under certain conditions, euthanasia and assisted suicide was rejected in the House of Commons by a vote of 228 to 59.

Conclusion

This debate is very important and has repercussions across the country. Although the discussion and public hearing process will be interesting, I doubt very much that the results will amount to a consensus significant enough to influence and make recommendations to the federal government on changes to the euthanasia and assisted suicide provisions under the Criminal Code. The consultations might, however, open up the issues for further debate across the country, which might eventually bring euthanasia and assisted suicide back into the general public’s view—and to the House of Commons.

Nevertheless, for Quebecers, the most important point is likely self-determination (and surely they’re not alone in this). And since the federal government has left enforcement of the Criminal Code up to the provinces, a consensus might very well lead the National Assembly to enshrine euthanasia and assisted suicide as provincially accepted, if not federally legal, practices. In other words, aside from a few activists, the people and government of Quebec probably aren’t especially interested in whether euthanasia or assisted suicide are legal across the country. Their concerns fall mainly within the borders of la belle province. In that respect, it will be interesting to see what the National Assembly accepts as consensus and how it decides to act on the file.

Additional sources:

Euthanasia and Assisted Suicide in Canada, Prepared by: Marlisa Tiedemann, Dominique Valiquet, Law and Government Division, Revised 17 July 2008

Voluntary Euthanasia and the Common Law, Margaret Otlowski, Oxford University Press, 2000 – Social Science