Does the recent Supreme Court Of Canada Decision Carter v. Canada legalize euthanasia? Or only assisted suicide?

I examine this question in the below article. I argue that it is far from clear that the Court has in fact authorized euthanasia.

My article is a reply to Jocelyn Downie’s contention that Carter definitely does make it legal for doctors to use both “the prescription and the syringe.” Her article is found here:

http://impactethics.ca/2015/03/01/the-supreme-court-of-canada-decision-allows-for-the-prescription-and-the-syringe/

I think everyone will agree that the question of whether Carter permits euthanasia is most important for the future of Canadian health care. The Court’s judgment is found here:

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.do

Unclear Intent: A Reply to Jocelyn Downie Whether Carter v. Canada legalizes euthanasia is open to serious question
Peter Ryan

Recently Jocelyn Downie argued that, in its February 6th landmark decision Carter v. Canada (Attorney-General), the Supreme Court of Canada “struck down the prohibitions on both physician-assisted suicide and physician-provided voluntary euthanasia” (“The Supreme Court of Canada Decision Allows for the Prescription and the Syringe,” Impact Ethics 1 March 2015 www.impactethics.ca).

Downie criticized the Canadian Medical Association (CMA) for expressing doubt whether the Court had intended to legalize euthanasia (Sharon Kirkay, “How far should a doctor go? MDs say they ‘need clarity’ on Supreme Court’s assisted suicide ruling,” National Post 23 Feb. 2015). The Court, she claimed, was “clear” about that. This matter was “clearly resolved.”

There is no doubt the Court legalized assisted suicide. But Downie is wrong. The Court was far from “clear” on euthanasia. It did not “clearly” legalize it.

I do not deny that the Court may have intended to legalize euthanasia. I only argue there are several good reasons to think it did not do so. The Court’s intention is not “clear.” What I deny, then, is Downie’s proposition that euthanasia was “clearly” legalized. There is reasonable doubt about the scope of the Court’s decision: it may pertain to assisted suicide alone. The CMA’s uncertainty is not off-base.

The first doubt about whether the Court intended to legalize euthanasia arises from the Court’s own words. In Paragraph 120 of the decision (see Appendix), the Court rejects the argument that legalization would mean “Canada will descend the slippery slope into euthanasia and condoned murder” (emphasis added). The logical meaning here is that the scope of legalization the Court is authorizing will not go beyond assisted suicide.

The doubt about the Court’s intent is confirmed and compounded by considering its definition of “euthanasia.” It offers none of its own. Since its decision largely supports that of the BC Supreme Court and borrows much of the trial judge’s material, it seems reasonable to assume the Court adopts her definition: “the intentional termination of a person, by another person, in order to relieve the first person’s suffering” (Carter v. Canada Attorney General, 2012 BCSC 886 at para. 38). Euthanasia, the trial judge went on to clarify, can be “voluntary,” “non-voluntary” or “involuntary” depending on whether it is, respectively, with, without or against the consent of the person whose life is terminated (ibid.).

Based on such a definition, the high court’s Paragraph 120 distinction between what it is allowing and “euthanasia” would mean its ruling does not allow any form of euthanasia, voluntary or otherwise.

A third layer of doubt arises when one considers how surprising it is that, if the Court intended to legalize not only assisted suicide but voluntary euthanasia, the Court provides no separate analysis or legal justification for euthanasia vis-à-vis assisted suicide. This fact suggests the Court was only considering the latter.

A fourth doubt arises from considering the Court’s silence on euthanasia in light of its particular seriousness. For a physician, assisted suicide and euthanasia are not identical acts ethically or, up to now at least, legally; even the trial judge did not contend otherwise.

With assisted suicide a person commits suicide by self-administering a lethal means, such as a drug prescription, provided by a willing physician. With euthanasia, on the other hand, the physician administers the lethal means and, thereby, intentionally terminates the person’s death. To use the metaphors of Downie’s article, there is a difference between providing a prescription and injecting a syringe. Only with euthanasia – injecting the syringe - does the physician directly bring about the person’s death.

Because of that ethical distinction, euthanasia has always been of a higher order of legal gravity. As Downie acknowledges, Canadian law has been that voluntary euthanasia can lead to the charge of murder. Assisted suicide is a lesser charge.

Downie’s assertion that the Court has legalized an act previously regarded as murder is improbable, for it would mean the Court chose to elide such a grave act under its examination of assisted suicide without adverting to its peculiar ethical and legal character. It is unlikely not one of nine justices on the court would have seen the need to address that character. It is more likely none intended to rule on euthanasia at all.

To contend Carter legalized euthanasia without even treating that subject is to assert that it did so by stealth. Would no justice have seen, and sought to avoid, a serious risk to the Court’s reputation from such subterfuge? It is more likely assisted suicide alone was seen as at issue.

For the foregoing four reasons, there is much doubt that Carter “clearly” legalized euthanasia. Further doubt arises from consideration of Downie’s two arguments.

She contends that the Court was “clear” in legalizing both assisted suicide and euthanasia because of “the specific Criminal Code provisions it struck down,” namely Section 241(b), which expressly bans assisted suicide, and Section 14:

No person is entitled to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

According to Downie, Section 14 bans voluntary euthanasia, which by striking the Court has now allowed. The argument is admittedly plausible. But there is another possibility that cannot be excluded. Section 14 may be interpreted as applying to assisted suicide as well. Consequently, that might be the focus of Court action rather than euthanasia.

The Court said it was striking down Section 14 only to the extent it prohibits the actions it now wishes to legalize. Perhaps it only intended to legalize assisted suicide, while leaving Section 14’s ban on voluntary euthanasia intact.

The Court’s intended scope on striking Section 14 is not clear at all. The Court neither analyzes the section nor in any way states that its focus is voluntary euthanasia. An element of doubt lingers concerning the Court’s intention.

How is Section 14 (if left standing) relevant to assisted suicide? If a physician provides someone with a lethal drug in order to commit suicide, the drug can be said to inflict (synonymous with “cause”) death. Consequently, it is not inconceivable that the physician who intentionally provides it for such a purpose might be charged with causing death, since the person’s consent does not remove the doctor’s responsibility. The result could be the charge of criminal negligence or even murder.

Perhaps by striking Section 14 the Court wished to assure any physician of a mind to assist suicide that no such charge would be laid for causing someone’s death, regardless of how likely a charge might be. For the prospect, however remote, of a criminal charge would understandably be enough to make many physicians anxious.

The Court’s silence on its intent regarding Section 14 is mysterious, if it indeed meant to legalize voluntary euthanasia. Such silence, on the other hand, makes complete sense if the Court only had assisted suicide in mind. While Downie’s proposition that the ruling on Section 14 applies to euthanasia is not unreasonable, neither can reasonable doubt about it be removed. The Carter ruling is not “clear.”

Downie’s other argument is that Carter legalized euthanasia because of “the terms used” in the decision. She refers to “physician-assisted dying” and “physician-assisted death.” But since the Court does not define these terms, their meaning is not crystal clear. One cannot dismiss out of hand the possibility that the Court used them as a euphemism for “physician-assisted suicide,” simply replacing “suicide” with “death” or “dying” to soften the image of the act. Perhaps euthanasia was not included in Carter’s purview.

Downie correctly notes that the trial judge used the terms and defined them to include voluntary euthanasia. While it would be surprising if the Court understood the terms differently yet offered no alternative definitions, that possibility cannot be excluded in light of the Court’s taciturn style already noted. Spelling things out is not Carter’s strongpoint.

Once again Section 120 (Appendix) of the decision increases doubt. Here the Court not only maintains that what it is allowing differs from “euthanasia and condoned murder;” neither is it “homicide.” Were the Court intending to legalize euthanasia, the claim that does not entail homicide is surprising, because the standard definition of euthanasia as discussed above – and which the Court seems to adopt – certainly meets the legal definition of homicide found in Section 222 of the Code, i.e., when one person directly or indirectly causes the death of a human being.

For the Court to indicate its decision does not touch upon homicide implies, therefore, that the legality of euthanasia is not at issue, so that its authorization of “physician-assisted death” would pertain only to assisted suicide.

This conclusion is reinforced when one considers the trial judge struck down Section 222 on homicide, whereas the Supreme Court did not. That is arguably because the trial judge wished to legalize euthanasia, which she rightly understood as homicide, whereas the high court had no interest in legalizing euthanasia, and therefore saw no need to strike Section 222’s homicide provision.

The different actions taken by the trial court and high court indicate that the former wished to legalize both assisted suicide and voluntary euthanasia while the latter restricted its ruling to assisted suicide.

In conclusion, there are several reasonable doubts about whether the Court intended to legalize euthanasia as well as assisted suicide. At the very least these doubts, when taken together, disprove Jocelyn Downie’s contention that the Court “clearly” legalized both. It is little wonder the Carter ruling left the Canadian Medical Association head-scratching.

This conclusion has implications for how Parliament might respond to Carter v. Canada with respect to euthanasia. The Supreme Court provides Parliament an opportunity to craft legislation in conformity with its ruling (paragraphs 125-128). Parliament has a number of options. Which it exercises depends, first of all, on whether, and to what extent, it wishes to restrict euthanasia.

First, Parliament could prevent any legalization of both euthanasia and assisted suicide by invoking Section 33 of the Charter of Rights, which effectively provides an override of the high court’s decision for at least five years (the Section can then be invoked indefinitely).

As a second alternative, Parliament could accept Carter with respect to assisted suicide but, in light of the decision’s uncertain scope, amend the Criminal Code to specify that voluntary euthanasia remains prohibited. That would leave the revised law open to a Charter challenge; with the likelihood a plaintiff would object that Parliament’s prohibition misinterprets Carter. Even so, this option at the very least postpones the advent of legalized euthanasia.

A third option would be for Parliament to hold off on legislation permitting euthanasia until Carter’s scope is formally clarified. This would entail awaiting a Supreme Court response to an inquiry by the Attorney-General on a question along the lines of, “Did the Court intend to legalize voluntary euthanasia?” Such an option would undoubtedly be coupled with a request to the Court that the twelve month period it allowed for new legislation to be brought in (paragraph 128) be extended.

The risk of the third option is that Parliament may not get the answer it wishes, if indeed it wishes to restrict euthanasia as much as possible. The first two options would be more effective for that purpose, though an affirmation by the Court that Carter applies only to assisted suicide would be welcome.

Among the three options mentioned, it seems obvious that Canadians opposed to both euthanasia and assisted suicide will likely have a descending order of preference.

Parliament could, of course, choose none of the above and choose instead to permit euthanasia, as Jocelyn Downie, a leading advocate for legalization, and others would prefer. If it does, however, it should not be on the basis of Downie’s unproven contention that Carter v. Canada requires it.

Is it lawful for physician to intentionally take the life of a patient when requested? That profound issue in Canadian health care has not yet been resolved.

Peter Ryan, MA, STL is executive director of the New Brunswick Right to Life Association. He has studied and written extensively on euthanasia.

APPENDIX: Carter v. Canada (Attorney-General) 2015 SCC 5, paragraph 120

Finally it is argued that without an absolute prohibition on assisted dying, Canada will descend the slippery slope into euthanasia and condoned murder. Anecdotal examples of controversial cases abroad were cited in support of this argument, only to be countered by anecdotal examples of systems that work well. The resolution of the issue before us falls to be resolved not by competing anecdotes, but by the evidence. The trial judge, after an exhaustive review of the evidence, rejected the argument that adoption of a regulatory scheme would initiate a descent down a slippery slope into homicide. We should not lightly assume that the regulatory scheme will function defectively, nor should we assume that other criminal sanctions against the taking of lives will prove impotent against abuse.

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