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The euthanasia debate in Canada

Peter Ryan
Issue: September 1999

Let us turn to the Canadian debate over legalized euthanasia in recent years. I will review highlights of this debate since the Sue Rodriguez case which began in 1992 and which brought the issue so prominently before the public. I will only briefly allude to the most recent developments.

The first question is, what is the legal context for this debate? What is Canada's law on euthanasia as the debate gets underway?

The Canadian law

Very simply, the Criminal Code of Canada completely prohibits both euthanasia and assisted suicide. Euthanasia falls under the murder provisions of the Code which prohibit the deliberate and intentional killing of another innocent human being. There is no special provision for it as a special category of murder based on a motive of compassion. Euthanasia, then, is murder, plain and simple. Assisted suicide, meanwhile, is distinguished from murder but classified as a serious crime punishable by up to 14 years' imprisonment. Suicide, however, is not a criminal offence.

Under the Code, murder can occur by either action or omission, so both active euthanasia and euthanasia by omission are illegal. Several sections of the Code deal with the duty to preserve life. Courts have ruled that under Section 215, parents can be convicted of murder for failing to provide the "necessities of life," including medical treatment, for their children. Similarly, health care professionals can be found guilty of homicide under Section 217 for omitting medical treatment when to do so "is or may be dangerous to life."

While the Code is strict in its letter, actual cases of people being convicted after carrying out euthanasia or assisted suicide have been extremely rare.

Under common law, Canadian courts have long recognized the right of a competent adult to consent to or to refuse medical treatment. A physician who treated against a patient's will would be liable for unlawful assault. However, autonomy in refusing treatment is not unlimited. Courts have never recognized a right to commit suicide by omission of treatment. And when parents (such as Jehovah's Witnesses) have refused routine life-saving operations for their children, the courts have ordered the procedures to be carried out.

Until quite recently there has been no living will legislation in Canada. Provinces only began to legislate the durable power-of-attorney form of advance directive in the late 1980's.

Prior to the Canadian debate that began in 1992, however, a number of factors were tending to create a climate for legal change.

Climate for legal change: moral relativism

Undoubtedly, the most fundamental factor auguring change was the whole outlook of moral relativism that has gained prevalence in Western society generally. As Pope John Paul has observed, moral values came to be seen as something an individual or society subjectively and arbitrarily creates, rather than something objectively true that is discovered and honoured. In such a moral climate, laws easily become subject to the shifting sands of public opinion. Politicians and judges even become unwilling to consider the morality of a public issue like abortion or euthanasia. They talk about "not imposing morality", and seem more interested in counting heads than in whether something is right or wrong, even when the issue is murder.

Thus you get a Chief Justice of the Supreme Court saying, in the Rodriguez decision, that it is unnecessary to consider the morality of euthanasia in a secular society; and saying earlier, in 1988 that he could not rule abortion a violation of the right to life because so many Canadians would not agree. Fortunately, in the Rodriguez decision he was in the minority.

Factors favouring euthanasia

There are five other factors favouring legalization of euthanasia as of 1992. I shall briefly mention them here:

1. The 1982 Charter of Rights presented individuals with several legal grounds for challenging existing laws against euthanasia.

2. A "Right to Die" movement was becoming well organized.

3. The Supreme Court's Morgentaler decision on abortion (January 1988) gave a certain momentum to the notion of a legal right to control one's body, a notion that might now be extended in a "right to die" direction.

4. Media reaction to several court cases dealing with the refusal of medical treatment heralded a "right to die," even though suicide or euthanasia were not ostensibly at issue. The Nancy B. case, in particular, was perceived as advancing complete legal autonomy over one's body, even though the scope of the actual decision was quite narrow, determining only that it was permissible to cease some life-preserving medical treatments.

Canadian courts have not, in Nancy B. or anywhere else, recognized an absolute right to refuse treatment. That is a good thing, because a right to refuse even ordinary treatment would encompass a legal right to suicide by omission, and would also allow physicians to cooperate in the suicidal omission which would amount to legalized euthanasia-by-omission—something that is completely contrary to Catholic teaching.

5. Several private members' bills favourable to euthanasia were presented in Parliament.

Let us turn to the case of Sue Rodriguez. In 1992 she was suffering from the terminal illness ALS. Foreseeing that she eventually would be unable to commit suicide without assistance, she petitioned the court to overturn section 241(b) of the Criminal Code which prohibits suicide. Through the extensive media coverage of her case, Ms. Rodriguez posed the following moral question to Canadian society: "If I cannot give consent to my own death, then whose body is this? Who owns my life?" To the largely sympathetic media, the answer seemed obvious and undeserving of debate. They did not seem interested in the very clear but challenging answer the Catholic doctrine gives to the same question; namely, that God is the owner of our lives and we are not free, therefore, to do with our bodies as we please.

Charter arguments

Ms. Rodriguez argued that the law against assisted suicide violated certain rights guaranteed by the Charter of Rights. She had two main arguments. First, an autonomy argument: she claimed that the right to life, liberty, and security of the person, protected by Section 7 of the Charter, includes the right to choose one’s own death. Secondly, she made an equality argument: she claimed that the equality right protected by Section 15 of the Charter should guarantee her the same freedom to commit suicide as other Canadians, and that the law discriminated against physically disabled citizens like her who could not commit suicide without assistance.

The Supreme Court of Canada rejected Ms. Rodriguez’s case, but only by a razor-thin 5-4 margin. The court majority mainly responded to the autonomy argument. It acknowledged that Ms. Rodriguez’ autonomy was infringed, but it said that the Charter allows such an infringement if it is in accord with "the principles of fundamental justice" and that the law against assisted suicide was indeed based on these principles.

The court focused in part on the fact that assisted suicide means that one person would be involved in ending the life of another. One of the principles of fundamental justice was the existing legal and societal consensus that "the active participation by one individual in the death of another is intrinsically morally and legally wrong."

Catholics must feel uncomfortable with part of this position—because what happens if the legal and societal consensus changes? The majority also said the law against assisted suicide protected vulnerable persons and therefore was not unfair. On that score there is no objection from a Catholic standpoint.

The Senate hearings

Following the Rodriguez decision in 1993, the focus of public attention regarding possible legal change shifted to Parliament. The Prime Minister said he would support a free vote on assisted suicide. But the next main stage of the public debate involved the creation of a Special Senate Committee on Euthanasia and Assisted Suicide which held public hearings beginning in 1994 and brought in a report to Parliament in 1995.

At the hearings, 153 witnesses appeared before the Senate Committee. As you can imagine, many arguments were heard both for and against the decriminalization of euthanasia and assisted suicide. It suffices to note that a much larger percentage opposed than favoured the legalization of assisted suicide, active voluntary euthanasia or active non-voluntary euthanasia. I think this had a lot to do with slowing political momentum for legal change in the past five years.

Omission of medical treatment

Senate witnesses were strongly in favour of allowing voluntary omission of medical treatment for any reason. This view presents a serious problem from a Catholic standpoint, for it goes in the direction of voluntary euthanasia-by-omission. There is nothing I know in Catholic doctrine that would dictate that someone must be treated against his or her will. But a major problem occurs if the law allows a caregiver to actually participate in euthanasia-by-omission by withdrawing ordinary means of life-preserving treatment. Think again of the patient who temporarily needs a respirator. Ethically, the doctor should not withdraw the respirator, because that would be euthanasia-by-omission. And the law, according to Catholic doctrine, should not allow euthanasia in any form.

The Senate report

The Special Senate Committee Committee made 28 recommendations in a report entitled Of Life and Death. Certainly among the most important were that active euthanasia and assisted suicide should not be decriminalized. But there were some problems in the Report. There are two that I consider most serious from a Catholic standpoint.

First, the Report seriously misdefines euthanasia in an exclusively active sense. For the Committee there is no such thing as euthanasia-by-omission. This misdefinition appears to be quite arbitrary. It is all the more remarkable given three things:

1. Canada’s legal tradition definitely recognizes the reality of euthanasia-by-omission and prohibits the practice.

2. Numerous witnesses who appeared before the Committee explained the meaning of euthanasia-by-omission and the problems of allowing it. These included some of the most distinguished witnesses such as Edward Keyserlingk and Margaret Somerville, not to mention the Canadian Conference of Catholic Bishops, and representatives of disabled persons who were concerned that the disabled are being killed in Canada right now through the discriminatory denial of life-preserving treatment.

3. The Committee somehow managed to ignore or misinterpret evidence that large numbers of Dutch deaths are occurring through the "explicit purpose" of physicians to shorten life by non-treatment.

"Compassionate homicide"

The second problem is the Report's recommendation to soften the penalty for active euthanasia by creating a new criminal offence that would distinguish euthanasia from first- or second-degree murder. The new offence either would be a new category for murder based on compassion, or it would be less than murder—something called "compassionate homicide".

Now any suggestion that euthanasia be treated as less than what it really is—murder—is objectionable. Even if it is treated as murder, to assign it a reduced penalty would effectively deprive sick, disabled, and dying victims of equal protection from being killed. Moreover, as the Catholic bishops noted in their criticism of the Report’s recommendation, "this approach is open to abuse and diminishes respect for human life by signalling that the life of a person who is old, infirm, chronically ill, or disabled is of less value" (press release, 6 June 1995).

Since 1995 the Senate Report has largely sat on the shelf and gathered dust. With no emerging consensus about the key areas of assisted suicide and voluntary euthanasia, government interest seemed to wane.

Nevertheless, over the last couple of years there have been a number of significant developments in the issue, which I can only mention here without discussing. These include the Latimer case (Saskatchewan), the Morrison case (Halifax), the Maurice Genereux case, Sharon Carstairs’ Senate Bill S-13, several public opinion polls, and Svend Robinson’s motion to set up a parliamentary committee to look at legalization. Suffice it to say, the euthanasia issue is far from settled in Canada.

Ten Suggestions for Action

I want to close with a list of 10 suggestions for Canadians regarding euthanasia:

Pray. Pray that our country and our children will be spared from legalized euthanasia.

Don't be naive. The euthanasia issue is not just going to go away. It is with us now, and it is likely going to be much bigger in the future. Let us face it and deal with it, using all the resources we have.

Think offence, not defence. Now is the time to act, to educate people, to shape our culture. Don't wait until the Prime Minister announces a euthanasia bill—then it may be too late. And let us really go on the offence. Let us go out and engage our opposition and even initiate public debate, being confident in the power of truth that we have on our side.

Push alternatives hard. Aggressively promote palliative care as the alternative to euthanasia. Push governments to guarantee that every Canadian has access to it.

Beware of back-door manoeuvres. Let us watch out for and resist efforts to bring euthanasia in through the back door—by a lax approach to treatment omission, by a lax approach to pain relief medications, by living wills, etc.

Build alliances. Work together with all those individuals and groups concerned about euthanasia, above all those most likely to be victimized—groups representing the disabled, seniors, and so on.

Counter phony polls. As best we can, we need to counteract polls alleging a public consensus in favour of euthanasia. There is no such consensus; challenge anyone who claims otherwise, analyze the polls, etc.

Tell the truth about Holland. Study the horrors of the Dutch euthanasia experience and educate people. Get hold of Herbert Hendin’s excellent book, Seduced by Death: Doctors, Patients, and the Dutch Cure, 1997. Challenge anyone who pooh-poohs the Dutch data.

Assert your rights. We have a right to be heard in the public square. Do not let people who are prejudiced intimidate you into silence.

Trust in God. No matter what happens, no matter how dark the road ahead may get, never lose confidence in God, who will never abandon those who put their trust in Him. He will always give us what we need, to face whatever we must face. Peter Ryan, MA, STL, was formerly director of Respect Life Office for the Archdiocese of Vancouver. In July 1999 he returned to his native New Brunswick where he will assume the executive directorship of New Brunswick Right to Life.

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