Canada's New Assisted Dying Laws: Murder by any other name

This is one of those articles I never wanted to write. In fact, I’ve been on a near permanent sabbatical, uncertain as to whether I wanted to write another blog. 

But something’s been stirring in me lately, something I can’t ignore. So here goes.

Witnessing the latest post-modernist attack on the status-quo, the debate about Euthanasia in Canada, in particular "assisted dying" (as the modern dialectic puts it) has left me in awe. Scratch that. Utter shock.

If you’ve been living under a rock permit me to fill you in. A recent Supreme Court ruling (Carter v. Canada) has declared a longstanding section of the criminal code criminalising assisted suicide null and void.   

[126] We have concluded that the laws prohibiting a physician’s assistance in terminating life (Criminal Code, s. 241(b) and s. 14) infringe Ms. Taylor’s s. 7 rights to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice, and that the infringement is not justified under s. 1 of the Charter. Carter v. Canada

What Charter are they referring to? The Charter of Human Rights and Freedom (1982). it states:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 

For the Supreme Court, these rights change with the times. In fact, it is a little at odds with itself on this point. At one point the finding reads: 

The prohibition on assisted suicide is, in general, a valid exercise of the federal criminal law power under s. 91(27) of the Constitution Act, 1867 Carter v. Canada

The finding then gets into the "how’s and why’s" that give the Court the authority to pass judgement based on the Charter’s "life, liberty and the security of persons". Needless to say its an unnecessarily confusing bit of semantics, concluding with a unanimous decision by the nine Supreme Court judges that radically reinterprets the meaning of assisted suicide in Canada.  

I always get a little squirmy when a modern, liberal democratic state gets into the business of determining who gets to live and who gets to die, for that really is what this case boils down to. Usually the state protects life, but in this case it has determined that protecting life (and thus causing continued suffering) is the greater of two evils, the lesser of course being homicide.  
   

This isn’t the first time we’ve battled this issue in Canada. In 1993, Rodriguez v. British Columbia determined that there weren’t enough guarantees that assisted suicide wouldn't spin out of control and leave vulnerable persons at risk. By its own admission the Court states:

[8] The legislative landscape on the issue of physician-assisted death has changed in the two decades since Rodriguez... Carter v. Canada

The Court then gives examples of legislative changes in assisted suicide laws in Europe and Quebec.

[10] The debate in the public arena reflects the ongoing debate in the legislative sphere. Carter v. Canada

The problem the Court had was major: overcoming the sections of the Criminal code that defined murder, ie: sections 222 and 241. 

222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.(2) Homicide is culpable or not culpable.(3) Homicide that is not culpable is not an offence.(4) Culpable homicide is murder or manslaughter or infanticide.(5) A person commits culpable homicide when he causes the death of a human being,(a) by means of an unlawful act; .. 241. Every one who(a) counsels a person to commit suicide, or(b) aids or abets a person to commit suicide,whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

And that is the heart of the issue. The Supreme Court has created an exception for murder where one did not exist, and now it is looking to the Government to codify their decision into law.  

Part of the argument also looked at current end-of-life practices in Canada:

"She (the trial judge) found that current unregulated end-of-life practices in Canada — such as the administration of palliative sedation and the withholding or withdrawal of lifesaving or life-sustaining medical treatment — can have the effect of hastening death and that there is a strong societal consensus that these practices are ethically acceptable … that there are qualified Canadian physicians who would find it ethical to assist a patient in dying if that act were not prohibited by law." Carter v. Canada

Essentially, the trial judge determined (and the Supreme Court agreed) that Canada was a pro-assisted dying state already but lacked the legislative protection to allow immunity for murder. 

Ultimately this issue has to do with an evolving sense of the value of life. 

As Canadian society moves further from its Judeo-Christian roots, its not surprising to see an erosion of support for the concept of suicide as self-murder.

So there is a clear black and white issue here, where some may want to claim shades of grey. Is suicide self-murder or not? 

It may come as a surprise then that suicide itself is not illegal in Canada. However anyone aiding or abetting someone in their suicide is guilty of murder. Strange reasoning. 

Let me change the language here a little. Anyone taking out the garbage is not guilty of taking out the garbage. But anyone helping him take out the garbage is guilty of taking out the garbage. Hmmm. I guess the Supreme court was on to something here. Either make suicide illegal or make helping someone commit it legal. So that's what happened. (the latter)

So Canada is entering new moral territory. Legalising an act that was previously called "murder" is  ethically dubious, whether one is for this practise or not. What is confounding is that capital punishment was abolished for the very reasons argued by the court, that it was considered a violation of a prisoner's right to life. Yet in some bizarre reasoning the Court has decided that based on its interpretation of the Charter of Human Rights and Freedoms a fundamental element to our right to life is to have the right not to have life.   

[127] The appropriate remedy is therefore a declaration that s. 241(b) and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. Carter v. Canada

Despite persuasive arguments that removing the murder taboo from assisted killing will let the proverbial genie out the bottle, the Court stayed its course: 

[111] Professor Montero’s affidavit reviews a number of recent, controversial and high-profile cases of assistance in dying in Belgium which would not fall within the parameters suggested in these reasons, such as euthanasia for minors or persons with psychiatric disorders or minor medical conditions. Professor Montero suggests that these cases demonstrate that a slippery slope is at work in Belgium. In his view, “[o]nce euthanasia is allowed, it becomes very difficult to maintain a strict interpretation of the statutory conditions.”[112] We are not convinced that Professor Montero’s evidence undermines the trial judge’s findings of fact.

In other words the Court has decided to overlook such evidence that assisted killing may create a "slippery slope" whereby the definition of murder continually changes, expanding the Euthinasia mandate. The Court decided such issues were unlikely to arise in Canada. 

And what of dissent? Should doctors be compelled to violate their conscience? The Supreme Court thinks not. But they do think those for and against should reconcile their beliefs:

[132] In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid. What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures. However, we note — as did Beetz J. in addressing the topic of physician participation in abortion in R. v. Morgentaler — that a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief (pp. 95-96). In making this observation, we do not wish to pre-empt the legislative and regulatory response to this judgement. Rather, we underline that the Charter rights of patients and physicians will need to be reconciled.

Reconciled means to restore relations with or to harmonise with. How can a doctor who has sworn to do only good and not harm ever be "reconciled" with the wilful murder of a patient? 

In fact the recent Canadian Parliamentary report oversteps the Supreme Court and states:

"At a minimum, the objecting practitioner must provide an effective referral for the patient,'' the committee said.

However, we are already seeing mission creep outside the scope mandated by the Court. 

But [Dr. Derrick]Smith believes the discussion should go even further — to include young children. "The commite isn't going to address that, but as a society we should," he said. "Obviously a five-year-old is not going to be able to give consent for something like that, but should we allow a substitute decision maker like the parent to say, "Johnny's had enough suffering. I think it's time that we assist him to terminate the suffering."

There’s a saying that when arguing a point the first one to bring up a Hitler reference loses. But in this case I think it is relevant, so let’s learn us some history. 

In mid-1939 Hitler authorised the creation of the Reich Committee for the Scientific Registering of Serious Hereditary and Congenital Illnesses. Its ultimate purpose was to cleanse the Reich of those "unworthy of life", including but not limited to children with conditions such as Down’s syndrome, hydrocephalus, paralysis, deformities, etc. 

The German "T4" program ran between Sept 1939 to Aug 1941 and saw the execution of some 70,000+ handicapped and disabled children. Under the program a panel of German physicians were directed to sign off patients "incurably sick, by critical medical examination" and then administer to them a "mercy death" . 

The T4 program used the term 'euthanasia' as bureaucratic cover…

Parents were misled, compelled and coerced, although many went along willingly, thanks to a culture that labelled such persons a burden to families and society in general.    

This was a top down program signed in secret by Adolph Hitler and carried out on a institutional level: from the doctors that administered the deadly cocktail of phenol, to the caretakers that disposed of the children’s corpses in furnaces for incineration. 

"At the same time, increased pressure was placed on parents to agree to their children being sent away. Many parents suspected what was really happening, especially when it became apparent that institutions for children with disabilities were being systematically cleared of their charges, and refused consent. The parents were warned that they could lose custody of all their children, and if that did not suffice, the parents could be threatened with call-up for 'labour duty'." Wikipedia

Eventually the program was extended to handicapped and terminally ill adults, and the techniques developed for "humanely" killing - such as gassing - were eventually adopted and up-scaled for use in Hilter’s final solution. 

"Several rationales for the programme have been offered, including eugenics, compassion, reducing suffering, racial hygiene, cost effectiveness and pressure on the welfare budget."

While you may say "but James, that’s an utterly preposterous analogy. Hitler’s T4 program wouldn’t happen here. It hasn’t happened in Belgium. Canada is a modern, democratic state with rule of law." 

Perhaps you're right. That was also the decision of the Supreme Court justices. 

[117] The trial judge, on the basis of her consideration of various regimes and how they operate, found that it is possible to establish a regime that addresses the risks associated with physician-assisted death. We agree with the trial judge that the risks associated with physician-assisted death can be limited through a carefully designed and monitored system of safeguards. Carter v. Canada

But I’m not willing to wait and find out. 

What concerns me more than the evolving discourse on the definition of murder is the open acceptance of "assisted dying". Even Hitler and his cronies had to keep the T4 program under wraps for fear the masses would discover the scope of what was happening at the Euthanasia centres.

But in the midst of the darkness something amazing happened in Germany.  Facing increasing complaints from parents in its congregations involving their murdered children, Church leaders - both Catholic and Protestant- began to voice their discontent to Nazi authorities, albeit privately. 

However in 1941, both Bishops, priests and pastors, initially hesitant, began to openly speak out against Hitler's euthanasia program. Protests began. Hitler began fearing open revolt in some of the more religious regions, particularly the predominately Catholic areas.

"By August the protests had spread to Bavaria. According to Gitta Sereny, Hitler was jeered by an angry crowd at Hof – the only time he was opposed in public during his 12 years of rule." Wikipedia

Absolutely amazing. As Edmond Burke stated "the only thing necessary for the triumph of evil is that good men do nothing." 

Thank God that good men stood in the gap and did something. By August 1941, Hitler ordered the T4 program shut down. 

It is the duty of everyone who is repulsed by the Carter v. Canada decision (and the soon to be laws enshrining Euthanasia in Canadian legislation) not just to be a conscientious objector, but to defy this order, as a soldier resisting an unlawful order would. 

Having studied history and war since I was a child, one thing becomes clear: authority is often abused. Sometimes it manifests itself in a national law that defies moral law. 
Governments will compel their citizens to comply with an unjust law, even if it violates their moral constitution. 

Likewise, in the heat of battle, orders are given that are egregious, that violate the laws of war. The greater the authority of those issuing orders, the more likely they are to be carried out. But that does not relieve soldiers of their responsibilities, that is to follow the laws of war. They are not automatons without a conscience. They have a duty both to their conscience and to laws of war (ie. Geneva Convention) to disobey an unlawful order. 

We are living in precarious times. It is not enough to be a conscientious objector. It is not enough to be content with the creation of laws that aim to protect healthcare practioners from violating their code of ethics. We share a burden of guilt as a nation if we don't maintain just moral laws. If the 20th century taught us anything, it showed us that.

For those in a position of power in Canada, with the ability to speak out against assisted killing, be it in the political, legal, medical or religious sphere, please exercise your influence and do not go silently into the night.