Assisted Suicide: Canadian Perspectives

DEATH AND THE LAW

Russell Savage DEATH AND THE LAW Considering the problem of dying in the medical context from the standpoint of Canadian law, it is helpful to discuss a series of contrasts or distinctions. The first distinction is between active euthanasia1 and assisted suicide. The second is a distinction between euthanasia and assisted suicide on the one hand, as opposed to hastening death as a consequence of alleviating suffering by withholding life-prolonging medical procedures or as an incident of pain-reducing palliative care on the other hand. The third contrast is between assisted suicide and covert euthanasia. In this context I shall argue that assisted suicide cannot be restricted to situations where the patient facilitates his or her own death through some direct action. Under the legal doctrine of parties, situations where a person's death is facilitated by a second party on instructions from a patient who, for whatever reason, does not physically contribute to the process can also count as assisted suicide rather than covert euthanasia. Finally, I will discuss the rationale of keeping assisted suicide as a crime when attempted suicide per se is no longer a crime. I. Euthanasia versus Assisted Suicide (i) Euthanasia as Murder Assuming that euthanasia, by definition, involves the intentional bringing about of a person's death, it falls squarely 73 ASSISTED SUICIDE: CANADIANPERSPECTIVES into the primary definition of murder in the Criminal Code as contained in section 229. 229. Culpable homicide is murder (a) where the person who causes the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not. If the act of euthanasia was planned and deliberate it is first-degree murder under section 231(2)2 and subject to the penalty of life in jail without eligibility for parole until 25 years are served (section 745(a)). In fact, most cases of euthanasia in the medical context would be first-degree murder since the act would, of practical necessity, have to be preceded by some deliberation and planning. It is hard to imagine a doctor carrying out an act of mercy killing on the "spur of the moment" without some forethought and planning. There is no provision in the Criminal Code to distinguish killing motivated by an intent to end suffering. (ii) Assisted Suicide Assisted suicide is a separate offence from murder with a different penalty: 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. Note that the crime of assisted suicide is not even in the continuum under culpable homicide from manslaughter through to first-degree murder.3 74 DEATH AND THE LAW II. Active Euthanasia and Assisted Suicide versus Death Hastening Treatment Ending of a patient's suffering by causing death (activeeuthanasia or suicide) is distinguished from the situation where death is a side effect of some action or omission intended to alleviate suffering (passive euthanasia). For example,a doctor might refrain from heroic life-prolonging measures, usually after consultation with the patient and/or a surrogate. A second example would be a situation where palliative care intended to ease patient suffering also hastens death. In both these cases the law is clear that the physician is not involved in any sort of culpable homicide or other offence. This was confirmed in the Rodriguez case from the Supreme Court of Canada where Sopinka J., writing for the majority , stated that in cases where the doctor discontinues treatment at the direction of the patient, the doctor is not assisting in the patient's suicide even if both the doctor and the patient know that such discontinuance willhasten the onsetof death: Whether or not one agrees that the active vs. passive distinction is maintainable, however, the fact remains that under our common law, the physician has no choice but to accept the patient's instructions to discontinue treatment. To continue to treat the patient when the patient has withdrawn consent to that treatment constitutes battery (Ciarlariello and NancyB.,supra). The doctor is therefore not required to make a choice that will result in the patient's death, as he would be if he chose to assist a...