What the Supreme Court said about life and death in the Sue Rodriguez case

The pro-life movement in Canada breathed a collective sigh of relief on Thursday, September 30, when the Supreme Court of Canada upheld the Criminal Code prohibition against aiding or abetting a suicide.  It would be foolhardy, however, to assume that this judgement has settled permanently the push to legalize euthanasia.  The majority was slim:  five judges supporting the present legislation; four opposing.  And, while it can be fairly argued that this merely reflects the general confusion in the public’s mind on the issue, proposals put forward by Chief Justice Lamer, supported and amplified by the other dissenting judges, are a radical and frightening step down the path to death on demand.

This decision marked the end of a series of court battles for Sue Rodriguez, the British Columbia mother who is afflicted with Amyotrophic.  Lateral Selerosis (ALS, also known as Lou Gehrig’s disease).  Ms. Rodriguez was supported and funded through her court challenges by the radical Right to Die Society, founded by journalist John Hofsess.  However, Ms. Rodriguez dismissed Hofsess as her spokesperson earlier this year, after he forged her signatures to letters to local newspapers.  Today, she is supported in media appearances by NDP MP Svend Robinson, a strong advocate of euthanasia.

Ms. Rodriguez was seeking the right to have a physician legally assist her in suicide at a time of her choosing.  Although she could legally commit suicide at any time while physically able to do so, she stated that she did not, as yet, wish to die.  But she fears the progress of the disease, which leads to increasing paralysis and is incurable.

Lawyers for Ms. Rodriguez argued that section 241(b) of the Criminal Code, which prohibits aiding a suicide, violates her rights under the Charter of Rights and Freedoms.

Section 7 of the Charter guarantees the right to life, liberty and security of the person; section 12 protects against cruel or unusual treatment or punishment; and section 15 prohibits discrimination based on mental or physical disability (among other specified grounds).

However, if a law contravenes such Charter rights, it can be upheld as constitutional  under section 1, if it is found to be a reasonable limit, justified in a free and democratic society.

The Supreme Court majority ruled that several of Ms. Rodriguez’s rights were violated by section 241(b) of the Criminal Code. Nevertheless, they found that these violations were excusable both under Section 1 of the Chapter, and under section 7 with its reference to “principles of fundamental justice.”

Writing for the majority, Justice  Sopinka said that, while Ms. Rodriguez’s security and liberty interests were impinged by section 241(b), “any resulting deprivation is not contrary to the principles of fundamental justice.”

“Sanctity of life, as we will see, has been understood historically as excluding freedom of choice in the self-infliction of death and certainly in the involvement of orders in carrying out that choice.  At the very least, no new consensus has emerged in society opposing the right of the state to regulate the involvement of others in exercising power over individuals ending their lives.

“The appellant [Sue Rodriguez suggests that for the terminally ill, the choice is one of time and manner of death rather than death itself since the latter is inevitable.  I disagree.  Rather it is one of choosing death instead of allowing natural forces to run their course.  The time and precise manner of death remain unknown until death actually occurs.  There can be no certainty in forecasting the precise circumstances of a death.  Death is, for all mortals, inevitable.  Even when death appears imminent, seeking to control the manner and timing of one’s death constitutes a conscious choice of death over life.  It follows that life as a value is engaged even in the case of the terminally ill who seek to choose death over life.”

Justice Sopinka observed that Ms. Rodriguez’s lawyers had not argued that section 241(b) was objectionable legislation, acknowledging that it has the valid state objective of preserving life and protecting the vulnerable.  They argued, instead, that it is over-inclusive because it covers those who are mentally competent to refuse  treatment which could lead to their deaths, but who are physically incapable of committing suicide.

He went on to look at similar legislation in other Western democracies, and found that, “nowhere is assisted suicide expressly permitted, and most countries have provisions expressly dealing with assisted suicide which are at least as restrictive as our s.241.  None of these restrictions have been found to be unconstitutional or contrary to fundamental human rights.”

“Some European countries,” he noted, “have mitigated prohibitions on assisted suicide which might render assistance in a case similar to that before us legal in those countries.  In the Netherlands, although assisted suicide and voluntary active euthanasia are officially illegal, prosecutions will not be laid so long as there is compliance with medically established guidelines.  Critics of the Dutch approach point to evidence  suggesting that involuntary active euthanasia (which is not permitted by the guidelines) is being practised to an increasing degree.  This worrisome trend supports the view that a relaxation of the absolute prohibition takes us down ‘the slippery slope.’”

Justice Sopinkaalso addressed the arguments that making a distinction between withdrawing treatment upon a patient’s request, or palliative care measures that may hasten death on the one hand, and assisted suicide on the other, rest on a “legal fiction.”

Citing the Nancy B case, he pointed out, “The continue to treat the patient when the patient has withdrawn consent to that treatment constitutes battery.  The doctor is therefore not required to make a choice which will result in the patient’s death as he would ne if he chose to assist a suicide or to perform active euthanasia.”

On palliative care, he said, “The administration of drugs designed for pain control in dosages which the physician knows will hasten death constitutes active contribution to death by any standard.  However, the distinction drawn here is one based upon intention – in the case of palliative care the intention is to ease pain, which has the effect of hastening death, while in the case of assisted suicide, the intention is undeniably to cause death.

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

As Justice Sopinka summed up the majority opinion of the arguments put forward under section 7 of the Charter, he observed that the consensus of our society is that human life is to be respected and :we must be careful not to undermine the institutions that protect it.”

To illustrate this general agreement, Justice Sopinka referred in passing to capital punishment, a provocative comparison for those pro-euthanasia and pro-abortion liberals who oppose capital punishment as well as for those pro-lifers who support it.

“This consensus,” he wrote, “finds legal expression in our legal system which prohibits capital punishment.  This prohibitions is supported \, in part, on the basis that allowing the state to kill will cheapen the value of human life and thus the state will serve in a sense as a role model for individuals in society.  The prohibition against assisted suicide serves a similar purpose.  In upholding the respect for life, it may discourage those who consider that life is unbearable at a particular moment, or who perceive themselves to be a burden upon others, from committing suicide.  To permit a physician to lawfully participate in taking life would send a signal that there are circumstances in which the state approves of suicide.”

Justice Sopinka then turned to arguments presented under section 12 of the Charter with its prohibitions against “cruel and unusual treatment or punishment.”

The question of “punishment” under section 12 was not relevant, he found.  The meaning of punishment within the Charter, he explained, was the type of penalty appropriate to “ensure the application and enforcement of a rule of law.”

The question of “cruel and unusual treatment” was less clear said Sopinka.  However, he decided, “The fact that,  because of the personal situation in which she finds herself, a particular prohibition impacts upon here in a manner which causes her suffering does not subject her to ‘treatment’ at the hand of the state.”

The final section of Charter which had been argued by Sue Rodriguez’s lawyers is section 15, and its guarantees of equality.  The majority of judges stated that it was “preferable” not to decide the “difficult and important issues raided” by this section.  They ruled that equality  rights are infringed by the law against assisted suicide, but that this discrimination is the kind of reasonable limited allowed under s.1 of the Charter.

In his 67-page dissen, Chief Justice Antonio Lamer argued that Ms. Rodriguez’s rights under s.15 of the Charter are violated, and this cannot be allowed.  In his view, disabled people are “deprived of the option of choosing suicide.”

Chief Justice Lamer dismissed the relevance of “the philosophical and theological considerations fuelling the debate on the morality of suicide or euthanasia.” He sees the issue as one of legality only and states, “the Charter has established the essentially secular nature of Canadian society and the central place of freedom of conscience in the operation of our institutions.”

The Chief Justice acknowledges the fears that legalized assisted suicide would be abused, but he does not think these concerns override the rights of the disabled who want assisted suicide.

“While I share a deep concern over the subtle and overt pressures that may be brought to bear on such persons if assisted suicide is decriminalized,” he writes, “even in limited circumstances, I do not think legislation that deprives a disadvantaged group of the right to equality can be justified solely on such speculative grounds, no matter how well intentioned. Similar dangers to the ones outlined above have surrounded the decriminalization of attempted suicide as well. It is impossible to know the degree of pressure or intimidation a physically able person may have been under when deciding to commit suicide. The truth is that we simply do not and cannot know the range of implications that allowing some form of assisted suicide will have for persons with physical disabilities. What we do know and cannot ignore is the anguish of those in the position of Ms Rodriguez. Respecting the consent of those in her position may necessarily imply running the risk that the consent in question is an independent and informed as is reasonably possible.”

Chief Justice Lamer recommended that s.241(b) be kept in force for one year following this judgment, to allow Parliament to decide what legislation, if any, should replace it. For Sue Rodriguez, and others who might want to follow her lead, he put forward a “constitutional exemption” to allow her legally assisted suicide. Such an exemption would be obtained by an application to a superior court, and granted if the judge is satisfied that the person is competent “to make the decision to end her own life,” and that this decision has been made “freely and voluntarily.”

Bearing in mind the marrow majority ruling in this case, the Chief Justice’s written dissent shows how closely Canada came to allowing anyone to have a legal right to have someone else kill him or her, under the fiction of assisted suicide. Chief Justice Lamer stated that restricting a constitutional exemption to those who are terminally ill, and suffering from incurable diseases or conditions, would be a violation of equality rights. In other words, a person would not even have to be sick to request assisted suicide, he would merely have to satisfy a judge that he was “competent” to make a decision for suicide, and that it is a free and voluntary choice.

Chief Justice Lamer also suggested that it would not even be necessary to ensure that the person desiring suicide had the ability to trigger the death-causing mechanism. “Why,” he asked, “should she be prevented the option of choosing suicide should her physical condition degenerate to the point where she is no longer even physically able to press a button or blow into a tube? Surely it is in such circumstances that assistance is required most.”

Both female judges, Madam Justice Claire L’Heureux-Dube and Madam Justice Beverley McLachlin supported Judge Lamer’s guidelines for legalizing assisted suicide, as did Justice Peter Cory.

The Supreme Court’s resolution in the Sue Rodriguez case has not settled the euthanasia issue. A committee of the Canadian Medical Association is studying the matter and the federal legislation will inevitably be brought forward in the near future. These are perilous times for the medically vulnerable in our society.