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CHRONIQUES DE JURISPRUDENCE
Preface
“Death Talk” in Canada: The Rodriguez Case
Margaret A. Somerville
Synopsis
Emotion, Cognition and the Euthanasia Debate
Balancing Individual and Societal Interests
Introduction
I.
I.
LII. Concepts and Language
Conclusion
Introduction
In both a literal and metaphorical sense euthanasia is an end-of-a-
millennium issue. Some of the most complex and serious decisions we will
face as individuals; families, communities and a society will be determined by
how we approach, structure, analyze and resolve the euthanasia debate. This
*Gale Professor of Law, Professor, Faculty of Medicine, Director, McGill Centre for Medicine,
Ethics and Law. I am grateful to my colleagues, Professor Katherine Young and Professor Roderick
Macdonald, for commenting on earlier drafts of this text. Research for this paper was supported,
in part, by a grant from the Donner (Canadian) Foundation.
McGill Law Journal 1994
Revue de droit de McGill
To be cited as: (1994) 39 McGill L.J. 602
Mode de r6f6rence: (1994) 39 R.D. McGill 602
19941
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debate can be regarded as the tip of an iceberg, an image that brings to mind
both the fact that the vast majority of the matters affected by the debate are
submerged and hidden,’ and the possibility that legalization of euthanasia
could prove to be an icy (slippery) slope. Legalizing euthanasia can also be
seen as a stone thrown in a pond, where the stone represents euthanasia and
the pond represents society. It is not sufficient to examine only the stone itself;
there is also much work that needs to be done in identifying the resulting rip-
ples and their impact.2
In order to do this we must establish a “questioning framework” built on
a transdisciplinary, transcultural and transsectoral base that can accommodate
input from members of the community and persons with relevant expertise;
formal and experiential learning; thinking and feeling; secular and religious
beliefs; and qualitative and quantitative perspectives, to name just some of the
diverse contributions that are needed. We must also recognize that this is a
debate that goes to the very heart of what it means to be human, and to the basis
and nature of human community and society.
In entering into this momentous debate, we need to strive for honesty and
integrity in ourselves and to accept that our “opponents” are also operating from
such a basis. In short, our disagreements must be focused on the issue of eutha-
nasia and other issues raised by this, not on a lack of respect for those with
whom we do not agree. It is within such’a broad and deep context that the judg-
ment of the Supreme Court of Canada in Rodriguez v. Canada (A.G.)3 must be
considered. It is also within such a context that political action concerning
euthanasia must be viewed.
Acceptance of the approach outlined above means recognizing that, while
it is true that the death of each of us is an intensely personal and individual
event, we are not dealing with just the death of any given individual –
for
in the euthanasia debate. In deciding whether eutha-
instance, Sue Rodriguez –
nasia (physician-assisted suicide4) is or should be legal, as Sue Rodriguez was
arguing, we are reflecting, and reflecting on, matters basic to the “world view”
that influences the life of each of us and gives it meaning. Seeing euthanasia in
such a context raises many questions:
* Do we believe that we are nothing more than highly complex thinking, feel-
ing, living machines, or do we believe that human life transcends the purely
mechanistic realm, and that there is a mystery beyond ourselves that we can-
‘See the list of questions, below, for examples of what these issues are.
2Together, these two images can also be regarded as representing the two types of analysis we
must undertake regarding issues raised in the euthanasia debate. Vertical analysis (the iceberg)
requires that we examine not only the factual reality or conscious level of an issue, but also its
the values and symbolism it carr-
unconscious –
ies or affects. Horizontl analysis (the pond) involves examining the connections of an issue, at any
of the three vertical levels described, to other issues at the same level.
its broad and deep origins –
and its super ego –
3[1993] 3 S.C.R. 519, (sub nom. Rodriguez v. British Columbia (A.G.)) 107 D.L.R. (4th) 342
[hereinafter Rodriguez cited to S.C.R.].
4The terms euthanasia and physician-assisted suicide are used interchangeably in this text. For
a detailed discussion of the importance and difficulty of defining euthanasia, see M.A. Somerville.
“The Song of Death: The Lyrics of Euthanasia” (1993) 9 J. Contemp. Health L. & Pol’y 1.
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not even start to contemplate –
unknowable) –
that we should respect, if not revere?
“the mystery of the unknown” (and perhaps
* Why are we engaged in the euthanasia debate now, when the basic conditions
giving rise to the circumstances that elicit calls for euthanasia – pain, suffer-
ing and terninal illness –
have always been part of the human condition and
we have always been able to kill each other?
* What impact would legalizing euthanasia have on persons who are sick, old
including the impact on their
or unable to “control the use of their bodies”5 –
perceptions of themselves and our perceptions of them?
* Are there reasons, other than the obvious ones of expertise, why we “medi-
calize” euthanasia?
” Why do we call many instances of euthanasia physician-assisted suicide and
neither euthanasia nor homicide?6
* What is the rhetoric used in the euthanasia debate, and are we being mani-
pulated by it?
” Who should have the burden of proof to show that legalizing euthanasia will
not be seriously harmful to society?7
” Can we justifiably distinguish withholding or withdrawal of treatment that
results in death, from euthanasia?
5Supra note 3 at 565, Lmer C.J.
6Clearly, the Chief Justice in his judgment in the Rodriguez case anticipates that physician-
assisted suicide could involve assistance beyond actions that would normally be characterized
as suicide, in that the act causing death would not be the act of the person himself or herself, but
the act of another person (ibid. at 578). It is very difficult to distinguish such an act from one
that would constitute homicide, in particular, culpable homicide in the form of murder or man-
slaughter. This raises the question of whether, in the Rodriguez case, what we are really discuss-
ing is justification for what would otherwise be culpable homicide, namely: that the motive is
compassion; that the person is competent and consenting and desires euthanasia; and that the cir-
cumstances are judged to be such that killing the person is justified. It is important to make the
distinction between homicide and suicide, because it allows us to see how legalizing physician-
assisted suicide or physician-inflicted homicide would fit in with and affect both the broader con-
text of our criminal law and some important principles on which our society is based. If what
we are doing is justifying homicide, we need to be clear about that, and not to confuse it with
another situation, namely suicide. Wbether homicide can be justified and whether suicide is jus-
tified are both questions that can be regarded as open to argument. The important point is that
the answer to each of these questions will not be identical, and therefore, we need to be clear
that we know which one we are discussing.
7See the remarks of Chief Justice Lamer (ibid. at 567), who implied that the burden could be
on those opposing physician-assisted suicide. In addressing the argument that legalizing this could
place vulnerable persons at risk of being subject to “subtle and overt pressures” (ibid. at 566), he
concluded that these are “speculative grounds … 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” (ibid.). Consequently, the Chief Justice’s position of allowing physician-
assisted suicide means that he must have regarded the burden of proof as being on those who
oppose legalization of euthanasia to show that it would harm society, in particular, vulnerable
members of society. This approach can be compared with one based on a position that those argu-
ing for a change in the “status quo” of prohibition of euthanasia have the burden of proving that
this change is justified. This means that they must show that the benefits of such a change would
clearly outweigh its risks and harms. See supra note 4 at 63-67.
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” Is the moral divide in determining what is acceptable with respect to infliction
of death between, on the one hand, voluntary choices of competent persons
and surrogate decision-making for euthanasia, or, on the other hand, between
killing (euthanasia) and allowing to die (withholding or withdrawal of treat-
ment)? Should the legal divide be the same as the moral divide?
* In legalizing euthanasia, would we be in danger of “deforming” fundamental
concepts important to the operation of the criminal law in general, such as: the
concept of intention; the non-relevance, in general, of motive to culpability;
the doctrine of causation; the distinction between homicide and suicide; or the
role of consent of the victim (or, more accurately, the absence of such a role)
in criminal liability for homicide?
” Should the euthanasia debate be conducted primarily through the courts and
the lens of the Canadian Charter of Rights and Freedoms,8 as in the Rodri-
guez case?
” Is “rights talk” the most appropriate framework within which to contextualize
the euthanasia debate?
* How should a post-modem democracy deal with issues such as euthanasia
when they come to be addressed in Parliament; that is, on what basis should
members of Parliament determine how to vote –
for instance, by consulting
their electorate, or on the basis of their own conscience?
” What balance should be struck in the euthanasia debate between individual
rights and societal claims when these conflict?
” Is euthanasia liberalism in the form of intense individualism gone wild, or is
it a rational response of caring individuals and a caring community?
* How can we represent the interests of society in a public debate carried out
largely through the media, when seeing the courage and tragedy of persons
like Sue Rodriguez rightly elicits our deepest compassion and empathy and
there can be no comparable image of society?
” Is the euthanasia debate a reflection of the fact that we are a death-denying
namely, organ-
but also death-obsessed society that has lost its main forum –
ized religion –
for “death talk”?
” Could the euthanasia debate be a reflection of a society that is suicidal and
homicidal and very fearful as a result? Is legalizing euthanasia an expression
that allows us to feel that we have both individual and societal death under
control –
tamed and civilized?
” Is euthanasia yet another expression of late twentieth century nihilism, in the
sense that we define ourselves as a society by what we are not –
for example,
post-modem, post-patriarchal, even post-antibiotic –
not by what we are? In
particular, does euthanasia reflect that we are a post-sacred society – one that
has lost all sense of the sacred (which is different from and not necessarily
connected with either the presence or loss of organized religion)?
8Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule
B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].
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” Is the manner in which we die primarily a socially or culturally structured
event, like marriage? Just as we have institutionalized divorce, should we
likewise institutionalize euthanasia so that we can divorce life?
* Is euthanasia a response to an almost total loss of death rituals in secular, post-
modem western societies? Does it function as such a ritual or as a substitute
for these?
” How will we affect our global community in terms of precedent setting if we
legalize euthanasia,9 especially as Canada is often regarded, and sometimes
promotes itself, as a model for other societies in terms of showing respect for
persons, human rights and human ethics and seeks to be emulated in this
regard?” Would legitimating euthanasia open the door to serious and frequent
abuse of the right to life of persons in some societies, especially those with
a history of such abuse, which could seek to legitimate their conduct on the
basis of following a Canadian example?
* How do we want our children and grandchildren to die?”
* What type of society do we want to pass on to future generations? What effect
would legalizing euthanasia have on the values and symbolism of the Cana-
dian society of the future –
its memes, that is, the units of cultural informa-
tion that we pass on from generation to generation, which can be regarded as
the inherited cultural norms of our society?
These are some of the questions we are dealing with when we engage in
the euthanasia debate. Notice that often they are incommensurable, for euthana-
sia is as much a matter of health and illness as it is religion, of law as it is lit-
erature, of ethics as it is aesthetics. 2 Assuming that there is a “privilege of the
preface writer”, along the lines of the “privilege of the chair”, I would like to
comment briefly, with reference to the Rodriguez case, on three matters that
relate to some of the questions outlined above.
I. Emotion, Cognition and the Euthanasia Debate
In the euthanasia debate, what should be the respective roles of cognitively
based and of emotionally based judgment?
91 am indebted to my colleague, Professor Katherine Young, for raising this question. See also
Dr. Gifford-Jones, “We Need Society to Prevent Cruelty to Dying Patients” The [Montreal]
Gazette (10 July 1994) C5, who was “asked to appear before a committee of Canadian senators
to give [his] opinion on euthanasia.” Speaking in strong support of euthanasia, he asks, rhetorically,
“How could I convince them that there is a point in history when no army can withstand the
strength of an idea whose time has come? How they had a unique opportunity to make history. And
how other countries might listen to their decision” [emphasis added].
‘0M.A. Somerville, “The Right to Health: A Human Rights Perspective” in J. Mann & C. Dupuy,
eds., SIDA, santi, droits de l’homme / AIDS, Health and Human Rights (Veyrier-du-Lac (Annecy),
France: Fondation Marcel Mrieux, Institut des Sciences du Vivant, 1993) 75.
”See the first chapter of the novel by
.D. James, I he Ulfltaren of Men (New York: A.A. Knopf,
1993) for a description of death by euthanasia in the year 2025.
121 am indebted to my colleague, Professor Roderick Macdonald, for articulating this in-
sight.
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One has a peculiar sensation –
possibly of cognitive dissonance’3 –
in
reading the Supreme Court of Canada’s judgment in Rodriguez. The reason is
that this intensely personal and emotional, and yet, in the context of euthanasia,
societally enormously important issue of when and how each of us dies, is of
necessity handled entirely through the lens of classic legal analysis, in particu-
lar, Charter analysis. The limitations imposed by a predominantly legal
approach to euthanasia can result in both benefits and risks or harms.
A benefit of using legal analysis is that it can allow us to identify those
parts of our arguments that are ostensibly based on cognition, reason and ratio-
nality, and those parts that are emotionally based. To deal with the issue of
euthanasia, we need to have and to explore both types of reactions and to be
aware of when we are using one and when the other. This might seem to imply
that cognitive and emotional processes can be clearly divided. They cannot, but
it is true that the emphasis can be more on one than the other in addressing an
issue. Moreover, the starting point of analysis of an issue, on a continuum from
“pure” reason to “pure” emotion, can alter the end point of that analysis and,
therefore, a decision regarding that issue. Despite this continuity between cog-
nitive and emotional processes, in practice we often purport to separate them.
One weakness of doing this appears if we act on the basis of this separation in
fashioning our response to an issue with respect to which these processes have
been used. Another weakness occurs when we examine only the dominantly
emotional or dominantly cognitive aspect of each side of an issue (especially if
we do not examine the same aspect with respect to each side). There are impor-
tant cognitive and emotional aspects on both sides of the euthanasia debate, all
of which need to be taken into account.14
This is not to ignore that there are dangers in taking into account our emo-
tional and intuitive responses (including, on occasion, those based on moral
intuition) to euthanasia. It is, rather, to recognize that there are at least equal
dangers in not doing so. This means that while these responses must be allowed
to play a role in the euthanasia debate, safeguards are needed. For instance, the
intense compassion and empathy that Sue Rodriguez elicited through her public
statements and appearances, particularly on television,’5 need to be balanced by
cognitively based argument, in particular, with respect to the impact that legal-
izing euthanasia would have on society itself – on what can be called “the eth-
ical and legal tone” of society. The old saying that hard cases make bad law
sums up the danger of reliance on emotional responses to an issue, including
emotional responses to euthanasia, to the exclusion of cognitive ones.
Most often in law, we tend to be concerned, usually with good cause, about
the cognitive overwhelming the emotional. Judges rarely, if ever, talk in their
‘3Cognitive dissonance is the phenomenon experienced when one receives two sets of conflict-
ing information, both of which appear to be true and correct.
4Supra note 4 at 74-75.
‘-Sue Rodriguez’s impact in this regard has not ceased with her death. Documentary programs
about her and the litigation which culminated in the Supreme Court case are being made and shown
on television; for example, the Canadian Broadcasting Corporation screened a one-hour documen-
tary on its program, “Witness”, on Tuesday, 2 August 1994.
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judgments about exercising moral intuition, and yet we expect them to do so and
more or less assume that it is present. Could it be, however, that a highly ratio-
nal, cognitive approach to an issue such as euthanasia might indicate the
absence of an exercise of moral intuition? As is probably true of justice, 6 we
might only notice the absence of the exercise of moral intuition, not its pres-
ence. We need to keep in mind that we ignore our feelings, particularly when
these involve moral intuition and are related to an issue such as euthanasia, at
our peril.
In this respect, it is interesting to note that a recent study has shown that
although a group of physicians surveyed knew that there was no ethical or legal
difference between justified withholding and withdrawal of life-support treat-
ment, theyfelt that there was a major difference and had much greater difficulty
with withdrawing treatment as compared with withholding it.’7 It has been sug-
gested that these feelings may be providing a valid warning. In general, with-
holding of treatment cases are much more ethically clear-cut than withdrawal
ones. It may be a safeguard, of both the persons affected by our actions and our-
selves, that we find more difficulty in acting in the latter case than the former. 8
Arguably, our long-standing approach of prohibition of euthanasia, but accept-
ance of refusals of treatment, indicates that probably most people feel that there
is a difference between giving a person a lethal injection and accepting that per-
son’s decision to refuse life-support treatment. It is a strong feature of all of the
dissenting judgments in the Rodriguez case (and one essential to each dissenting
judge’s recognition of Sue Rodriguez’s right to have assistance in ending her
life) that there are no morally significant reasons to distinguish between accept-
ance of a person’s refusal of life-support treatment and euthanasia, and that
there should be no difference in the way in which the law deals with each of
these situations. We need to ask whether this is an example of a cognitive
approach displacing necessary emotional responses to which we should pay
heed.
With respect, perhaps the most surprising statement in the Rodriguez case,
that of the Chief Justice to the effect that there is a “right to choose suicide,” 9
might reflect yet another variation of the relationship between cognitive and
emotional responses in dealing with legal issues. In this instance, a cognitive
approach may be masking a primarily emotional response. One assumes that “a
right to choose suicide” means there is a right to commit suicide, as there is little
point in having a right to choose a course of action which one has no right to
undertake.’ The wider implications of recognizing such a right cannot be dis-
16See M.A. Somerville, “Justice across the Generations” (1989) 29 Social Science & Med. 385.
I7M. Solomon, “Health Care Professionals and Treatment at the End of Life” (Address to the
American Society of Law, Medicine and Ethics Annual Meeting, Cambridge, Mass., 30-31 Octo-
ber 1992) [unpublished].
’81bid.
19Supra note 3 at 552, 562.
2One can speculate that the Chief Justice might have characterized the right in question in this
way in order to place emphasis on the mental element of the person who desires to commit suicide
and on his or her act of choosing, and to de-emphasize the importance of the act of the person who
assists in the suicide. In short, this approach could be seen as making the choosing of suicide the
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cussed here.2 Rather, it is important to understand why the Chief Justice recog-
nized this right, for which there does not appear to be any precedent –
not that
the Supreme Court needs this. The Chief Justice addressed the issue of access
to euthanasia through the lens of discrimination, under sectionl5 of the Charter.
He held that the law, in prohibiting Sue Rodriguez from being given assistance
to commit suicide, was unlawfully discriminating against her, as a handicapped
person unable to commit suicide without such assistance, with regard to her
right to choose suicide. This particular use of the discrimination provisions in
the Charter, with respect, seems unusual, and it could be asked whether it
reflects a reality in which the Chief Justice was acting on feelings of compas-
sion and mercy towards Sue Rodriguez and was using sophisticated, technical
legal argumentation and reasoning to fashion a holding that would allow these
to be implemented in practice. In short, there is a sense of use of the cognitive
tools of the Charter to articulate and act on a deeply felt emotional response.
If we consider that in our post-modem, secular Canadian society, the
courts, especially the Supreme Court of Canada, and Parliament have become
our highest cathedrals, it is not surprising that non-cognitive factors could be
strongly influencing the approach taken by the judges to the issue of euthanasia.
H. Balancing Individual and Societal Interests
In the euthanasia debate, what weight should be given to societal interests,
in particular, in upholding the concept of sanctity of life, when these are in con-
flict with individual interests?
Probably the most important difference between the majority and the
judges in dissent in the Rodriguez case-is the weight each gives to the interests
of society in deciding whether or not euthanasia should be regarded as legal.
The judges in dissent clearly did not consider that any interest of society out-
weighs the interests of terminally ill, competent persons with respect to auto-
nomy, self-determination, dignity, control and choice in relation to determining
for themselves the manner, time and place of their death. In contrast, the major-
ity held that the interests of society (or possibly the interests of vulnerable per-
sons in society who might be persuaded to commit suicide and societal interests
in protecting them22) outweigh these interests of the individual.
The majority stated that, in deciding on the constitutionality of the prohi-
bition on assisted suicide in subsection 241(b) of the Criminal Code,” while the
liberty and security of the person interests are engaged, a consideration of these
interests cannot be divorced from the sanctity of life, which is one of the three
Charter values protected by section 7.
overwhelmingly dominant relevant fact, and not its commission, which, in turn, could lead to a
position that assistance with the latter is not in itself of major importance. It also has the effect of
emphasizing that the situation is one of suicide and deemphasizing that it could be one that involves
homicide.
21For instance, would it mean that there is a duty not to treat a person admitted to an emergency
22Sttpra note 3 at 595, Sopinka J.
23R.S.C. 1985, c. C-46.
room who has attempted suicide and refuses treatment?
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None of these values prevail a priori over the others. All must be taken into
account …24
The majority recognized that “security of the person is intrinsically concerned
with the well-being of the living person.”‘ 5 It referred to human life as being
“sacred or inviolable (which terms … [are used] in the non-religious sense …);”26
that is, human life has “a deep, intrinsic value of its own.” ’27 And it articulates
one of the questions of fundamental importance as being “the degree to which
our conception of the sanctity of life includes notions of quality of life as
well.”2 This is an interesting statement, because, almost invariably, the con-
cepts of sanctity of life and quality of life are seen as being in opposition to each
other. Certainly, the former is not usually regarded as including the latter; rather,
sanctity of life is used as a counter-argument to propositions that a given per-
son’s quality of life is so low as to be not worth preserving, especially if this
requires the use of scarce or expensive health care resources.
It merits considering whether a concept of sanctity of life differs from one
of respect for life and, if so, in which ways. As noted above, and on other occa-
sions in its judgment, the majority expressly or impliedly referred to the value
of sanctity of life.29 In comparison, Justice McLachlin in dissent, with Justice
L’Heureux-Dub6 concurring, referred to “the state interest in protecting life,”3
and Justice Cory, likewise in dissent, to the “basic position … that human life
is fundamentally important to our democratic society.”‘” Whether the judge was
indicating that respect for human life depends on democracy, or vice versa, or
both, is not clear. In any case, we need to ask whether the content of all or any
of these or similar terms used by the various justices of the Supreme Court in
the Rodriguez case is the same, and if not, whether these terms might represent
a continuum from greater to lesser degrees of protection of life. For instance,
while a concept of respect for life could have identical content to one of sanctity
of life, it may not and is of much less certain content than the latter. It also mer-
its considering where the cut-off point on the continuum would be with respect
to decisions based on the law’s fundamental presumption in favour of life, that
is, how broad the range of decisions that are regarded as legally acceptable
would be on the continuum described,;2 and how flexible this point is or should
be.
The majority in the Rodriguez case linked protection of vulnerable persons
with protection of life:
Section 241(b) has as its purpose the protection of the vulnerable who might
be induced in moments of weakness to commit suicide. This purpose is grounded
in the state interest in protecting life and reflects the policy of the state that human
24Supra note 3 at 584.
25Ibid. at 585.
261 bid.
271bid.
2 8Ibid.
-‘Ibid. at 584, 598.
301bid. at 620.
311bid. at 629.
-2See supra note 4 at 63-64.
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life should not be depreciated by allowing life to be taken. This policy finds
expression not only in the provisions of our Criminal Code which prohibit murder
and other violent acts against others notwithstanding the consent of the victim, but
also in the policy against capital punishment and, until its repeal, attempted sui-
cide. This is not only a policy of the state, however, but is part of our fundamental
conception of the sanctity of human life.33
This raises another contrast between the majority decision and those of the dis-
senting judges. The majority recognized that a person’s consent to being killed
neither alters the legality of the act, nor ought it do so, even when the killing
is in the context of euthanasia. The judges in dissent, in holding that physician-
assisted suicide should be allowed, placed heavy emphasis on the consent of
competent persons who wish to have assistance in order to die, as the necessary
safeguard to prevent any abuse of such assistance.
The majority also spoke of the sanctity of human life in relation to its pres-
ervation. It recognized, however, that the principle of sanctity of life can “be
subject to certain limitations and qualifications reflective of personal autonomy
and dignity.”‘
In this regard, it recognized that life-sustaining medical treatment
may be refused by competent persons or where there is “compelling evidence
that withdrawal of treatment was in fact what the patient would have requested
had she been competent.”35 This, in turn, is to recognize that it can be consistent
to espouse a principle of sanctity of life and yet not seek to prolong life or to
avoid death in certain circumstances. If the occurrence of death detracts from
upholding a principle of sanctity of life, then the principle is meaningless
because all of us die and, therefore, life could never be regarded. as being sacred.
Rather, it is how death occurs, not if it occurs, that has an impact on the sanctity
of life principle. Sanctity of life does not mean preservation or prolongation of
life at all costs; rather, it governs what we must not do to interfere with life, and
do to protect it, because to do or not do, respectively, would detract from respect
for its sanctity.
This raises an important and difficult question: Is acceptance of persons’
refusals of life-support treatment or provision of pain relief treatment that could
shorten life but is necessary to relieve pain, an exception to the sanctity of life
principle, and if so, is it a serious threat to maintaining the principle? It can be
argued that these interventions do not constitute such an exception, because they
do not involve a primary purpose of shortening life and therefore are outside the
scope of operation of the principle of sanctity of life. If, however, this is incor-
rect, then it is proposed that these interventions are justified exceptions, and
moreover, that while by definition they derogate from the principle, they do not
threaten or harm it.36 Just because this is true of some exceptions, however, does
33Supra note 3 at 595 [emphasis added].
341bid. at 595-96.
31Ibid. at 598.
36A statement of the majority referring to the House of Lords case, Airedale N.H.S. Trust v.
Bland, [1993] 1 All E.R. 821, [1993] 2 W.L.R. 316, is interesting in this respect as arguably it
adopts both positions: “[The principle of sanctity of life, which was not absolute, was therefore
found not to be violated by the withdrawal of treatment” (Rodriguez, ibid. at 598 [emphasis
added]).
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not mean that it is true of all; indeed, if all or even just some particular kinds
of exceptions could be justified, no principle would remain. In my view, eutha-
nasia would be this kind of exception; to regard it as justified would, in fact,
have the effect of eliminating the principle of sanctity of life.
All threats to important societal values are not of the same nature and,
depending on their nature, the destructiveness of their impact can vary. Overt
threats to maintaining important societal values like sanctity of life are much
more destructive of them than are latent threats. Euthanasia presents an overt
threat to such values. In contrast, the threat, if any, posed to the same values by
respect for refusals of treatment or provision of necessary pain relief treatment
that could shorten life, is latent. In other words, even if it were true that these
interventions and euthanasia all constitute threats to the sanctity of life prin-
ciple, euthanasia is a vastly more serious threat.
One consequence of the acceptance in our Canadian society of regarding
some withdrawals or withholding of life-sustaining treatment as valid, or of pro-
viding pain relief treatment even if this could shorten life if it is necessary to
relieve pain, is that it has been increasingly argued by persons who are pro-
choice with respect to euthanasia, that this establishes a precedent for a “right
to die” that persons should be allowed to exercise through euthanasia.37 The
argument is that to respect competent persons’ refusals of life-support treatment
that result in death is to recognize that the principle of sanctity of life is not
absolute and, therefore, the question, “What exceptions to the principle of sanc-
tity of life should be allowed; in particular, where should the line be drawn with
respect to euthanasia?”, is not one of principle, but only one of degree.
If this argument were correct, then the basis on which any such exception
is recognized would be important in terms of the types of intervention that ought
to or would, as a consequence, be authorized. If, on the one hand, refusals of
treatment are respected on the basis of respecting persons’ rights to autonomy,
then, unless one limits the scope of exercise of this right (for instance, through
a doctrine of “abuse of rights”, or through legislation, as is presently the case
with the prohibition on assisted suicide in the Criminal Code38), it is arguable
that euthanasia is simply another exercise of personal autonomy and ought to be
allowed, like refusals of life-sustaining treatment, as just one more autonomy-
based exception to the principle of sanctity of life. If, on the other hand, the
basis for respecting refusals of treatment is respect for a person’s right to invi-
the right not be touched without one’s consent – which is a more
olability –
limited version or sub-category of the right to autonomy,39 this would set no
precedent that could be used to validate euthanasia.
It is true that a value judgment is involved in arguing that persons’ refusals
of treatment should be respected and pain relief treatment, even that which
could shorten life, should be provided if necessary to relieve pain, but that
-“‘See supra note 4 at 10-12.
38Supra note 23, s. 241(b).
39M.A. Somerville, Consent to Medical Care (Study Paper prepared for the Law Reform Com-
mission of Canada) (Hull, Que.: Supply & Services Canada, 1980).
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CHRONIQUES DE JURISPRUDENCE
euthanasia should be prohibited. But it is not an arbitrary judgment. There is a
difference, even if one does not regard it as a morally significant difference,
between not prolonging a person’s life and giving the person a lethal injection.
The nature of the act of giving a lethal injection is and feels different from the
act(s) involved in not prolonging a person’s life; and having a primary intention
to kill is different from a situation in which such an intention is not present, even
though in the latter case it is recognized that death could or will ensue as a con-
sequence of the intervention or non-intervention.
One question raised by consideration of a concept of sanctity of life in the
context of euthanasia is whether this is a concept that is fundamental to the par-
adigm that governs a secular society, as compared with a “religious” one. We
need to be very careful that concepts that have traditionally been associated with
religion, as arguably is true of “sanctity of life”, are not thrown out simply on
the basis of this connection. While it can be true that we saw such concepts as
fundamental values in society on the basis that they were religious norms or
requirements, they can also be essential in establishing the foundations of a sec-
ular society. In other words, when we did not need to look beyond religion for
authority for such concepts, we could use religion. This does not necessarily
mean that the same concepts cannot be used and are not needed if religion is
unavailable as a means of authenticating them. There are good reasons, other
than religious ones, for a society to uphold a value of sanctity of life. In the
same vein, we need to be careful that concepts such as sanctity of life that may
have become associated with certain ideological or political stances which we
do not personally support, are not rejected by us simply on the basis of such
connections.
The majority impliedly referred to the concept of sanctity of life in artic-
ulating the grounds on which both the House of Lords’ and the Law Reform
Commission of Canada,4 to paraphrase the majority’s holding, have not been
prepared to recognize the legality of providing active assistance to a person in
carrying out the desire to end his or her life:
[F]irst, the active participation by one individual in the death of another is intrin-
sically morally and legally wrong, and secondly, there is no certainty that abuses
can be prevented by anything less than a complete prohibition. Creating an excep-
tion for the terminally ill might therefore frustrate the purpose of the legislation
of protecting the vulnerable because adequate guidelines to control abuse are dif-
ficult or impossible to develop.42
This passage raises two issues: first, whether or not the majority of the Court
is adopting the principle that euthanasia is intrinsically morally and legally
wrong, or simply saying that the House of Lords and the Law Reform Commis-
sion of Canada have adopted this principle; and second, a related issue, whether
exceptions allowing euthanasia for terminally ill persons would be acceptable
-if they could be safeguarded.
‘Supra note 36.
41Euthanasia, Aiding Suicide and Cessation of Treatment (Report No. 20) (Hull, Que.: Supply
42Supra note 3 at 601.
& Services Canada, 1983).
McGILL LAW JOURNAL
[Vol. 39
On reading the judgment of the majority as a whole, one is left with the
strong impression that while it relied on both of the bases described, either one
or the other would have been sufficient for its holding that physician-assisted
suicide should not be legalized, at least pursuant to a Charter challenge.43 It is
noteworthy, however, that Justice McLachlin in dissent, who spent considerable
time in her judgment dealing with the judgment of the majority, mentioned only
the danger of abuse as the reason on which the majority based its holding. More-
over, she would further limit the basis of the majority’s holding by limiting the
type of abuse that she considered the majority was concerned with if physician-
assisted suicide were to be legalized. She stated that the majority saw the lim-
itation on persons’ rights to security of the person, constituted by the prohibition
on assisted suicide, as being “necessary to prevent deaths which may not truly
be consented to.”‘ This interpretation of the majority’s judgment would mean
that if consent to physician-assisted suicide could be safeguarded, it would be
allowed by the majority (or more precisely, it would hold that it would be
unconstitutional to interfere with a person’s obtaining such assistance). With
respect, the majority’s fears of abuse appear to be much more broadly based
than this and clearly include not just the impact on individuals of allowing
euthanasia, but also that on society itself:
Overall, then, it appears that a blanket prohibition on assisted suicide similar
to that in s. 241 is the norm among Western democracies, and such a prohibition
has never been adjudged to be unconstitutional or contrary to fundamental human
rights…. [Slocietal concern with preserving life and protecting the vulnerable
rendered the blanket prohibition preferable to a law which might not adequately
prevent abuse. 45
Finally, one of the major differences between the majority and dissents in
relation to balancing conflicting societal and individual interests appears to be
in the choice of basic presumption from which each starts the analysis. The
majority speaks of “balancing … the interest of the state and the individual”46
and, although it is not explicit, appears to analyze from a basic presumption of
sanctity of life:
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 others 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.47
In contrast, the justices in dissent appear to commence from a basic presumption
of an individual’s right to autonomy.4′ This difference can be captured by com-
paring the statements in each of the judgments concerning which principles are
not absolute. Somewhat paradoxically, such statements, in identifying a prin-
ciple as not being absolute, impliedly indicate that it is fundamental. The major-
43See, in particular, ibid. at 605-606.
44Ibid. at 617 [emphasis added].
4″lbid. at 605.
461bid. at 593.
4″Ibid. at 585.
48See e.g. ibid. at 554, 560-61, Lamer C.J.
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CASE COMMENTS
ity recognized that the principle of sanctity of life is “not absolute”49 and the dis-
senting judges, for instance the Chief Justice, that the scope of an individual’s
right to autonomy and self-determination “is never absolute.”5 Basic presump-
tions are not neutral; they determine the outcome in cases of equal doubt as to
whether or not a burden of proof has been fulfilled, because in such circumstan-
ces they govern.5’ In the context of the present discussion, this means that if the
basic presumption is a principle of sanctity of life, this will govern unless it is
displaced by proof, at least on the balance of probabilities, that it should not
apply. The same reasoning is true with respect to a basic presumption favouring
the principle of an individual’s right to autonomy, in particular to choose death
by euthanasia. The outcome in a given situation in which the former presump-
tion is regarded as fundamental will be the polar opposite to that resulting if the
latter- presumption is regarded as fundamental, although, to state the obvious,
each analysis deals with the same degree of doubt about the same matters.
While I do not suggest that the majority and dissents reached their decisions
principally as a result of such a procedural effect, we always need to be aware
in using the law that form is never a mere formality.
M. Concepts and Language
In the euthanasia debate, how does our choice of concepts, in particular the
language in which we choose to express these, influence the debate?
First, it merits noting that the case we are discussing has been largely
referred to as the “Sue Rodriguez case” and not the “Rodriguez case” as would
be the more common legal shorthand. The use of the plaintiff’s first name
undoubtedly reflects many factors which are at play, including our emotional
reaction to Sue Rodriguez personally, our personal identification with her and
her plight (we all inevitably face death), and the nature of the issue being liti-
gated, namely, our rights to claim relief from suffering, or at least not to be
inhibited in seeking this in whatever ways we as individuals find acceptable.
Words which appear with unusual frequency in the judgments of both the
majority and the dissents –
even for a case that raises important issues concern-
ing the breadth of individual freedom protected by the right to security of the
person under section 7 of the Charter –
are autonomy, self-determination, dig-
nity, choice and control. There is much that needs to be explored with regard
to the Supreme Court’s use, in the Rodriguez case, of these concepts. We need
to consider matters ranging from the impact of our choice of language in formu-
lating such concepts 2 (language is not neutral, especially when used in relation
to matters such as euthanasia and by our highest court); to the scope of possible
definitions of each of these concepts;53 to what they reflect about our attitudes,
49Ibid. at 598.
5Ibid. at 560. See also ibid. at 554.
I’Supra note 4 at 63-67.
521bid. at 44-56.
53See, for example, with regard to possible definitions of autonomy and self-determination, M.A.
Somerville, “Labels versus Contents: Variance between Philosophy, Psychiatry and Law in Con-
REVUE DE DROIT DE McGILL
[Vol. 39
values and beliefs as individuals and a society; and to the impact exclusive
emphasis on them will have on important societal symbolism, including that
which supports or detracts from seeing ourselves as a community and the
responsibilities and privileges this entails.
Likewise, we need to recognize the two-edged sword that concepts such as
euthanasia can provide, that is, depending on the content which is attributed to
them (which in part depends on the language in which they are formulated) and
the way in which they are used, their impact and effects can be radically differ-
ent in given circumstances. Quoting Professor Lawrence Tribe, the majority rec-
ognized this in stating that “legalizing euthanasia rather than respecting people,
may endanger personhood.”‘ 4 In the same vein, the majority noted that “[t]he
principles of fundamental justice leave a great deal of scope for personal judg-
ment, and the Court must be careful that they do not become principles which
are of fundamental justice in the eye of the beholder only.”5’ The latter part of
this statement resonates with one possible meaning of the concept of dignity.
This is that dignity is an extrinsic characteristic, that is, other persons are dig-
nified according to whether or not we attribute dignity to them. In other words,
dignity exists only in the eye of the beholder. In contrast, if dignity is an intrin-
sic characteristic, persons are dignified whether or not others regard them as
such.56 In view of the emphasis placed on dignity in all of the judgments of the
Supreme Court in the Rodriguez case, it will be very important to explore this
concept, in particular, to determine whether an intrinsic or extrinsic definition
of dignity is being or should be used in relation to euthanasia. One problem with
an extrinsic definition is that it opens up the possibility that persons would need
to have additional characteristics other than simply being persons in order to be
respected on the basis of having dignity. It is much safer to require only the
presence of a universally shared intrinsic characteristic in order to be owed
respect on the basis of having dignity, namely, that we respect persons because
they are persons, or, even more protectively, simply because they are human.
We need to recognize, to cite the majority in the Rodriguez case, “the intrinsic
value of human life and … the inherent dignity of every human being
Conclusion
We are in a period of intense activity with respect to moulding a new soci-
etal paradigm –
the story which informs us as a society and necessarily has
impact on us as individuals. Euthanasia itself is already an important part of our
story –
its prohibition makes it so. Should we re-write the story? Should we
legalize euthanasia? Should we change arguably the most fundamental principle
on which our society is based –
to one that
that we do not kill each other –
cepts Governing Decision-Making” (1994) 39 McGill L.J. 179; and with respect to dignity, choice
and control, “The Song of Death: The Lyrics of Euthanasia”, ibid.
54Supra note 3 at 589, quoting L. Tribe, American Constitutional Law, 2d ed. (Mineola, N.Y.:
Foundation Press, 1988) at 1371.
551bid.
56Supra note 4 at 27-29.
57Supra note 3 at 585 [emphasis added].
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617
allows us to kill in certain circumstances for reasons of mercy and compassion?
These are the questions faced and answered in various ways by the Supreme
Court of Canada in the Rodriguez case. They are also the questions to which the
commentaries on that case in this issue of the McGill Law Journal will contri-
bute. These contributions will, it is hoped, elicit further contributions in what
must be a lengthy and complex debate involving all levels of society and its
institutions. This is essential because the search for a new paradigm is a crucial
element in our search for meaning both as individuals and as members of soci-
ety. We need, therefore, to ask yet another question: Would legalizing euthana-
sia help or hinder us in finding such meaning?