Euthanasia and Self-Determinism: Is There a Charter Right to
Die in Canada?
Fran Carnerie*
The common law right to self-determination
allows anyone to refuse medical treatment,
but when a terminally ill patient wants to
refuse life-sustaining treatment in order to end
her suffering this right is put in question. The
Criminal Code, by various provisions, effec-
tively outlaws acts of euthanasia; however,
the author argues that the Canadian Charter
ofRights and Freedoms may be used to assert
a constitutional right to choose death, when
to refuse the patient’s request would effec-
tively deny the right to life, liberty and se-
curity of the person, freedom of conscience,
or the right to be free from cruel and unusual
treatment. This also involves a discussion of
whether the Charter is applicable to quasi-
governmental bodies, in relation to which such
situations usually arise.
Le droit A l’auto-d~termination permet A toute
personne de refirser le traitement m&lical, mais
dans le cas d’une patiente en phase terminale
d~sirant faire cesser les traitements qui la
maintiennent en vie,
‘exercice de ce droit
devient sujet A controverse. Le Code cri-
minel, par ditferents articles, fait de l’eutha-
nasie un acte illegal; cependant,
‘auteure
soutient que la Charte canadienne des droits
et libert&s pourrait permettre la protection
constitutionnelle du droit de choisir la mort,
lorsque le refius de reconnaitre ce droit si-
gnifierait pour ]a patiente une violation du
droit A ]a vie, A la libert6 et A la sfcurit6 de
sa personne, de ]a libert6 de conscience, ou
du droit d’tre prot~g6 contre les traitements
cruels et inusit~s. Cette idfe soul~ve par le
fait m~me Ia question de l’applicabilit6 de ]a
Charte aux organismes quasi-gouvememen-
taux, qui sont habituellement impliqufs dans
ce genre de situations.
*Reg. N., N.P., M.H.Sc., LL.B. Dalhousie University, 1987. The author wishes to thank
Professor A. Wayne MacKay of Dalhousie University for his suggestions and support in the
preparation of this article. Of course, the author alone assumes responsibility for the final
product.
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[Vol. 32
Synopsis
Introduction
I. Underlying Principles
A. Applicability of the Charter
B. Interpretation and Judicial Roles
II.
Interactions of the Criminal Code and the Common Law
III. Purposes of the Charter
IV. The Pertinent Charter Provisions
A. Section 7 – Life, Liberty and Security of the Person
1.
2.
3.
4.
5.
Other Jurisdictions
Interests Protected under Section 7
Life
Liberty
Security of the Person
B. Subsection 2(a) – Freedom of Conscience and Religion
C. Section 12 – Cruel and Unusual Punishment
V. Whither Section 1?
A. Reasonable Limits
B. Prescribed by Law
C. Demonstrably Justified in a Free and Democratic Society
Conclusions
*
*
*
1987]
EUTHANASIA AND SELF-DETERMINISM
Introduction
Until the latter part of the twentieth century, a discussion of the right
to die would likely have been an academic one, engaging theologians and
moralists in an exploration of attitudes and beliefs regarding suicide. For
the terminally ill, there was little recourse but to endure the natural pro-
gression of disease to its inexorable end or simply to wait for the onset of
pneumonia, “The Old Man’s Friend”.I The recent marriage of medicine and
technology, however, has pushed back the frontiers of death. Aggressive
drugs, sophisticated surgical techniques, and computers have caused the
spectre of death to fade to such an extent that at times an instrument is
required to indicate if death has actually occurred. 2
For the stricken individual, the implications of this Orwellian medi-
cotechnical revolution are extraordinary, as no medical intervention is with-
out its potential side effect. Cardiopulmonary resuscitation (C.P.R.) can lead
to brain damage; successful anti-cancer and antibiotic therapy could mean
a prolongation of life with poorly controlled pain; 3 while neurosurgical in-
terventions may lead to years of a comatose or non-cognitive existence.
The past two decades have also witnessed the increasing emphasis on
agathanasia, 4 a concept arising from the Greek words Agathos, meaning
good, and Thanatos, meaning death. Dying with dignity is a concern in the
twentieth century because artificially induced prolongation of life can lead
‘B.M. Dickens lucidly discusses the role of antibiotic therapy for individuals with pneumonia
who are also confronting death within a short time, “The Right to Natural Death” (1981) 26
McGill L.J. 847 at 861. The role of individual prognosis as a determinant to withdraw or
withhold treatment will receive further elaboration in this paper.
2Encephalography is used on a person with irreversible coma to determine if the condition
precludes reactivation of any part of the brain. For a provocative discussion dealing with “the
life of a brainless body”, see H. Jonas, “Against the Stream: Comments on the Definition and
Redefinition of Death” in J.E. Thomas, ed., Matters of Life and Death: Crises in Bio-Medical
Ethics (Toronto: Samuel Stevens, 1978) 78.
3J.j. Bonica, “Cancer Pain” in I. Ajemian & B.M. Mount, eds, The R. VH. Manual on
Palliative/Hospice Care (New York: Arno Press, 1980) 113 at 113, analyzed a number of surveys
on the incidence of cancer pain which suggested that moderate to severe pain is experienced
by approximately 40% of the patients in intermediate stages of the disease. This figure increases
to between 60% and 80% of patients who have advanced cancer.
4Thanatology writings at first trickled into the literature, but have become an extensive body
of theory since the works of Dr E. Kubler-Ross first achieved medical acclaim. See On Death
and Dying (New York: MacMillan, 1969).
McGILL LAW JOURNAL
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to a dramatically decreased quality of life for the individual, perhaps even
to a morally repugnant degree. 5
Issues of euthanasia are among the most polemical and extensively
debated within the realms of medicine, ethics, theology and law. The legal
response to this academic activity and dialogue in Canada has been a sub-
ordination of the common law right of self-determination to the presump-
tion of preference for life as embodied in the Canadian Criminal Code.6
But what of the persons who would rather discontinue procedures than
maintain life beyond what they view as reasonable limits? Should they so
desire, do they have protection against what is certainly for some an ex-
tension of physical suffering, financial and psychological hardship, or
incognizance?
In the absence of accommodating statutory protection, such as “Natural
Death Acts ‘ 7 found in other jurisdictions, those who advocate a right to
die in Canada naturally look to the Canadian Charter ofRights and Freedoms8
for assistance.This paper explores the arguments that might be made under
the Charter to assert that there is a constitutional right to die in Canada.
Although it has been argued that from a morality perspective there is no
difference between active and passive euthanasia,9 for the purposes of this
paper, discussion is confined to passive euthanasia for persons who are
terminally ill or dependent on life support systems. 10
5Dr V. Rakoff argues that, although medical professionals are technically adept at life-saving
procedures, to resuscitate a person under certain conditions may be both morally improper
and obtuse. Although as a society we may value the prolongation of life through technical
intervention, such measures may be surprising in their moral and ethical implications: see V.
Rakoff, “High Technology, Will, Ethics, and Medicine” (Killam Lecture Series on Morality
and Medicine, Dalhousie University, 17 October 1985) [unpublished].
6R.S.C. 1970, c. C-34. The specific sections reflecting this presumption will be discussed at
7Such legislation includes the Natural Death Act, 1983, S. Austl. Sess. Stat. 1983, No. 121.,
more length in this paper.
and the California Natural Death Act, 1976 Cal. Stat. c. 1439.
8Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
c. I 1 [hereinafter the Charter].
9J. Rachels, “Active and Passive Euthanasia” in J.E. Thomas, ed., MedicalEthics andHuman
Life: Doctor, Patient and Family in the New Technology, (Sanibel, Fl.: Samuel Stevens, 1983)
291 at 295. The author argues that since the underlying motive (compassion) and end sought
(the cessation of suffering) are common to both active and passive forms of euthanasia, there
is no moral difference between the two. See also Samek, infra, note 50 at 93-94 and Dickens,
supra, note I at 858-62.
‘Olt is now generally acknowledged that there are four types of euthanasia: voluntary passive
a person is permitted to die with her consent and knowledge; involuntary passive –
a
–
person is permitted to die without her consent and knowledge; voluntary active –
a person
is killed with her knowledge and consent; involuntary active –
a person is killed without her
knowledge and consent: see M.J. Fromer, Ethical Issues in Health Care (Toronto: C.V. Mosby,
1981) at 390.
1987]
EUTHANASIA AND SELF-DETERMINISM
I. Underlying Principles
A. Applicability of the Charter
The application of the Charter has been extensively debated in legal
literature. One group of scholars propounds that the language of section
3211 of the Charter extends protection to both the private and government
sectors. 12 An opposing school argues that the reach of section 32 is confined
to “governmental activity”, and thus the issue pivots on how this is defined.13
In the recent case of Retail, Wholesale and Department Store Union,
Local 580 v. Dolphin Delivery Ltd, the Supreme Court of Canada stated that
the Charter does not apply to purely private action. Rather, section 32 makes
the Charter applicable to governmental action, whether that action is based
on a statutory or common law rule. The Court did not have to delineate
the scope of governmental action, since the litigation was between private
parties, but McIntyre J., speaking for the majority, did make the following
statement:
It would also seem that the Charter would apply to many forms of dele-
gated legislation, regulations, orders in council, possibly municipal by-laws,
and by-laws and regulations of other creatures of Parliament and the Legis-
latures. It is not suggested that this list is exhaustive. Where such exercise of,
or reliance upon, governmental action is present and where one private party
invokes or relies upon it to produce an infringement of the Charter rights of
another, the Charter will be applicable.’ 4
The issue to be determined, then, is whether the activity in question may
be said to be governmental. Professor Swinton has posited two guides for
the interpretation of this concept which would accord Charter protection
to a health care recipient. 15
‘IS. 32(1) states:
32(1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within
the authority of Parliament including all matters relating to the Yukon Territory
and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters
within the authority of the legislature of each province.
12See D. Gibson, “The Charter of Rights and the Private Sector” (1982) 12 Man. L.J. 213;
M. Manning, Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act,
1982 (Toronto: Edmond-Montgomery, 1983) at 115-16.
13See, e.g., P.W. Hogg, Constitutional Law of Canada, 2d ed. (Toronto: Carswell, 1985) at
671.
14(18 December 1986) No. 18720 at 37 [hereinafter Dolphin Delivery].
‘5K. Swinton, “Application of the Canadian Charter of Rights and Freedoms (Ss. 30, 31,
32)” in W.S. Tarnopolsky & G.-A. Beaudoin, eds, The Canadian Charter of Rights and Free-
doms: Commentary (Toronto: Carswell, 1982) 41 at 49.
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The first of these guides is the American doctrine of “state action”. The
Fourteenth Amendment of the American Constitution, which guarantees
that “[n]o State shall” deprive any citizen of certain rights without due
process of law, has been interpreted to extend to the rights contained in the
Bill of Rights, thus making these guarantees applicable to state action.’ 6 On
a case-by-case basis, however, the courts have broadened the scope of State
action so that it encompasses apparently private actions as well, despite the
absence of clearly articulated rules to guide such extensions. American com-
mentators have articulated tests to determine the reach of the Bill of Rights
in such cases. Briefly summarized, these tests have found that the private
action is subject to the Bill of Rights where the private entity customarily
allows public access to its private property, where the private entity carries
out a government function and so becomes the State’s agent, and where
there is a sufficiently close nexus between the State and the private entity
as evidenced by the degree of State control of the entity through regulation.’ 7
Hospitals in Canada are created pursuant to enabling provincial leg-
islation to provide state-funded health care. It can thus be speculated that
public function and access tests are met, thereby bringing the patient within
the Charters protection. What of nursing and special care homes, however,
which are subject to provincial legislation, but many of which are privately
owned? Although it may be argued that such institutions serve a public
function, Canadian courts in contrast to their American counterparts may
be reluctant to find a “sufficiently close nexus” -between the State and the
private activity.
According to Swinton, a second source of guidance in the section 32
issue might be found in the law of Crown immunity as it applies to Crown
agents. In addition to examining the specific agent for any regulatory au-
thority it may hold over individuals, she submits that a purposive approach
is required. In such a case the issue to be determined is “whether the action
or institution in question carries out a function of the state against which
an individual has a need for protection.”‘ 8 In this instance, a strong argu-
ment can be made for extending Charter coverage to the terminally ill who
wish release from their suffering. Such a population needs protection against
the unwanted bodily intrusion which accompanies the provision of state-
funded and state-regulated health care. In addition, the legislative function
of hospitals, as embodied in their ability to enact by-laws and resolutions,
16See Congressional Research Service, Library ofCongress, ed., The Constitution ofthe United
States ofAnerica: Analysis and Interpretation (Washington: U.S. Government Printing Office,
1973) at 899-907; L.H. Tribe, American Constitutional Law (Mineola, N.Y.: Foundation Press,
1978) at 567-69.
I7Swinton, supra, note 15 at 54-56.
1I8bid, at 59.
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EUTHANASIA AND SELF-DETERMINISM
brings them squarely within the ambit of other bodies which Swinton posits
are agents of the Crown, such as municipal governments and school boards.
The question of the application of the Charter in the hospital setting
was considered in Larose v. R. 19 In this case, the accused alleged an in-
fringement of his Charter right to security of the person when a lab tech-
nician took a blood specimen to ascertain its alcohol content. Maranger
D.C.J. held that there was no evidence to show that hospital personnel fall
within the purview of section 32. On the other hand, in the recent case of
Stoffman v. Vancouver General Hospital20 the Court stated that section 32
may extend the application of the Charter to agencies set up by the provincial
government and which provide government services to the public. Dolphin
Delivery has extended the application of the Charter to governmental ac-
tivity under the common law and shown that the Charter cannot apply to
all private litigation, but it still remains for the Supreme Court to articulate
the limits of the “legislative, executive and administrative branches of gov-
ernment”, 21 to which it has said the Charter does apply.
B. Interpretation and Judicial Roles
The Charter, as a constitutional document, is to enjoy special judicial
consideration under the doctrine of progressive interpretation in order to
give full effect to the civil liberties guaranteed therein.22 Lord Sankey in an
oft-quoted metaphor from Edwards v. A.G. Canada described the consti-
tution as “a living tree capable of growth and expansion within its natural
limits”, with a view to affording constitutional instruments “a large and
liberal interpretation” in order that their provisions would not be “cut down”
by “a narrow and technical construction. ‘ 23
Generosity in Charter interpretation is contingent upon the role of the
judiciary. Although historically the Canadian judiciary has had to deal with
many constitutional questions, these have been confined primarily to issues
concerning the division of powers in a federal State. Canadian judges have
been reluctant to depart from traditional Anglo-Canadian judicial roles and
have avoided venturing into politically oriented or policy-laden issues.24
The advent of the Charter, however, has introduced a number of changes
19(1983), 25 M.V.R. 225 (Ont. Dist. Ct).
20(1986), [1986] 6 W.W.R. 23 (B.C.S.C.).
21Supra, note 14 at 31.
22Law Society of Upper Canada v. Skapinker(1984), [1984] 1 S.C.R. 357 at 365-66, 11 C.C.C.
(3d) 481, 53 N.R. 169 [hereinafter Skapinker cited to S.C.R.].
23(1929), [1930] A.C. 124 at 136, [1929] 3 W.W.R. 479, [1930] 1 D.L.R. 98 (PC.).
24See B. Hovius & R. Martin, “The Canadian Charter of Rights and Freedoms in the Supreme
Court of Canada” (1983) 61 Can. Bar Rev. 354 at 364; A. Roman, “The Charter of Rights:
Renewing the Social Contract?” (1982-83) 8 Queen’s L.J. 188 at 192-93.
McGILL LAW JOURNAL
[Vol. 32
which directly affect the process of judicial review. Canadian judges have
been presented with a new and potent document to apply, one which by its
very nature has substantially expanded the area of judicial review.25 Not
only are the Charter rights expressed in broad, even vague, terms, but they
may conflict with other traditionally cherished rights. Section 7 intrinsically
demonstrates this polarization in relation to the euthanasia issue. Advo-
cating that terminally ill persons have the “liberty” to choose the cessation
of life clearly comes into conflict with the rights to “life” and “security of
the person” which are ageless and vigorously defended Canadian values.
The policy issues involved in finding solutions to these conflicting claims
are obvious and mark a departure from the historical role of the Canadian
judiciary. In the United States, however, the similarly broadly defined rights
enshrined in the Bill of Rights have been broadly interpreted by the courts
on political issues and at times in controversial ways.26 Whether this tra-
dition of judicial activism is apt to dawn in Canada has been a topic of
extensive discussion by legal scholars. Historically, the philosophical ori-
entation of Canadian judges has favoured the supremacy of Parliament. 27
When contrasted with the revolutionary history of the United States –
American traditions of “self evident principles and universal natural rights” 28
and avoidance of governmental regulation –
some writers have been led
to express doubts as to whether a similar spirit of judicial activism will
emerge in Canada.29
It is not yet clear if a philosophical and attitudinal change toward ju-
dicial review is occurring. In any examination of the short record of Charter
interpretation by the Supreme Court of Canada, it is only apparent that
judicial responses have been labile. In Skapinker, Mr Justice Estey opened
the door to interpretative expansion by expressly endorsing the consider-
25See generally, Swinton, supra, note 15.
26The appointment of Chief Justice Warren heralded such an era of judicial activism. By
giving a broad reading to clauses in the American Bill of Rights, the Warren court made several
controversial decisions including requiring the desegregation of segregated schools in Brown
v. Board of Education of Topeka, 347 U.S. 483 (1954), and affording women the liberty to have
an abortion in Roe v. Wade, 410 U.S. 113 (1973).
27A.W. MacKay, “Fairness after the Charter- A Rose by Any Other Name?” (1985) 10 Queen’s
L.J. 263 at 264.
28p. Russell, “The Political Role of the Supreme Court of Canada” (1975) 53 Can. Bar Rev.
576 at 592.
29See L. Tremblay, “Section 7 of the Charter Substantive Due Process?” (1984) 18 U.B.C.
L. Rev. 201 at 202-7.
1987]
EUTHANASIA AND SELF-DETERMINISM
ation of American cases. 30 As well, the intention of subjecting Cabinet de-
cisions to judicial scrutiny was clearly articulated in Operation Dismantle
Inc. v. R. 31 In that case, however, although the question brought to the court
was a highly political and controversial one,32 the judicial response was to
hold in favour of the government. A distinct break with Canadian tradition
occurred in the recent case, Reference Re Section 94(2) of the Motor Vehicle
Act, R.S.B.C. 1979.33 By ruling that section 7 should receive substantive
review, a significant departure from previous Supreme Court of Canada
decisions was evidenced 34 and a step in the direction of American inter-
pretation decidedly was taken. Whether this decision is the harbinger of
continued activism in Canadian judicial review remains to be seen. 35
30Supra, note 22 at 367. Mr Chief Justice Dickson, in an address for the opening of the
Cambridge Lectures on July 15, 1985, stated that the jurisprudence under the American Bill
of Rights is helpful in determining the scope of the Charter. His Lordship further stated that
reviewing American decisions on a Charter issue would “almost always” be useful as they
provide a place to begin forming ideas. In Hunter v. Southam Inc., infra, note 57 at 159,
Dickson C.J.C. considered the protection accorded persons against unreasonable search and
seizure under the Fourth Amendment. He expressly approved this approach in construing the
protections afforded by section 8 of the Charter. Lamer J., however, articulated concerns about
importing American constitutional concepts, terminology and jurisprudence into the Canadian
context in Reference Re Section 94(2) of the Motor Vehicle Act, R.S.B.C. 1979 (1985), [1985]
2 S.C.R. 486 at 498, 24 D.L.R. (4th) 536 [hereinafter cited to S.C.R.]. Allowing the U.S. debate
to simply define the issue in Canada was seen by His Lordship as a disservice to the Charter,
given the fundamental structural differences between the two constitutions.
cited to S.C.R.].
31(1985), [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481, 59 N.R. 1 [hereinafter Operation Dismantle
32A group of organizations and unions sought a declaration that the federal government’s
decision to allow cruise missile testing in Canada was unconstitutional on the grounds that it
violated s. 7 of the Charter.
33Supra, note 30.
341n Duke v. R. (1972), [1972] S.C.R. 917 at 923, 18 C.R.N.S. 302, Laskin C.J. soundly
dismissed the possibility of substantive due process in Canada:
Under s. 2(e) of the Bill of Rights no law of Canada shall be construed or applied
so as to deprive him of “a fair hearing in accordance with the principles of fun-
damental justice”. Without attempting to formulate any final definition of those
words, I would take them to mean, generally, that the tribunal which adjudicates
upon his rights must act fairly, in good faith, without bias and in a judicial temper,
and must give to him the opportunity adequately to state his case.
It is interesting to note that three years later in R. v. Morgentaler (1975), [1976] 1 S.C.R. 616
at 633, 4 N.R. 277 Laskin C.J. opened the door to substantive due process under s. l(a) of the
Canadian Bill of Rights, infra, note 139. He stated:
I am not, however, prepared to say … that the prescriptions of s. l(a) must be
rigidly confined to procedural matters. .. . [I]t may be that there can be a proper
invocation of due process of law in respect of federal legislation as improperly
abridging a person’s right to life, liberty, security and enjoyment of property.
35For a provocative discussion on the consequences of liberal judicial review under the
Charter, see RH. Russell, “The Political Purposes of the Canadian Charter of Rights and
Freedoms” (1983) 61 Can. Bar Rev. 30 at 49.
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[Vol. 32
It is against this restless constitutional landscape of as yet undefined
rights and variations in long-held judicial roles that the right to die in Canada
is explored.
II. Interactions of the Criminal Code and the Common Law
As succinctly stated by Professor Dickens, ours is “a life-affirming cul-
ture where the preservation of human life is celebrated. ‘ 36 Not surprisingly,
the Criminal Code asserts and protects the sanctity of life in a number of
ways which directly confront the autonomy of the terminally ill in their
medical decision-making.
Section 14 states that:
No person is entitled to consent to have death inflicted upon him, and such
consent does not affect the criminal responsibility of any person by whom
death may be inflicted upon the person by whom consent is given.
At first blush it may appear that a competent adult could argue for the
withdrawal of medical treatment or life support, as death would not be
“inflicted”. Rather, death would naturally ensue in the absence of inter-
ventions which keep it temporarily at bay. Thus, the ambit of this provision
potentially could be avoided. Once medical treatment has been initiated,
however, the practitioner must use reasonable knowledge, skill and care 37
to administer ongoing therapy, if the discontinuation of treatment would
be dangerous to life.38 In addition, functioning adjunctively with these pro-
visions is subsection 241(b):
Everyone who … without reasonable cause prevents or impedes or attempts
to prevent or impede any person who is attempting to save the life of another
person, is guilty of an indictable offence ….
The Criminal Code goes even further by requiring persons who are under
a legal duty for individuals in their charge to provide the necessaries of
life39 which include the provision of health care.40 It can be inferred, then,
36Supra, note I at 847.
37S. 198 states: “Everyone who undertakes to administer surgical or medical treatment to
another person or to do any other lawful acts that may endanger the life of another person is,
except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill
and care in so doing.”
38S. 199 states: “Everyone who undertakes to do an act is under a legal duty to do it if an
omission to do the act is or may be dangerous to life.”
39S. 197(2)(a)(ii) requires parents, foster parents, guardians, heads of families and spouses
to provide necessaries of life to their charges if “the failure to perform the duty endangers the
life of the person to whom the duty is owed, or causes or is likely to cause the health of that
person to be injured permanently.”
40See R. v. Brooks (1902), 9 B.C.R. 13, 5 C.C.C. 372 (S.C.); R. v. Cyrenne, Cyrenne & Cramb
(1981), 62 C.C.C. (2d) 238 (Ont. Dist. Ct).
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EUTHANASIA AND SELF-DETERMINISM
that the Canadian criminal law presumes that a person does not wish to
die. So strong is this presumption that Dickens has proposed on the basis
of section 241 that even patients cannot prohibit physicians from attempting
to save their lives in emergency situations.41
But what of a person’s common law right to determine what shall be
done with her own body? Autonomy and consensual touching in the pro-
vision of health care have long been protected in Canadian medical juris-
prudence. The Supreme Court of Canada recently approved an oft-quoted
statement of Cardozo J. in Schloendorff v. Society of New York Hospital,42
that “every human being of adult years and sound mind has a right to
determine what shall be done with his own body …”. Mr Chief Justice Laskin
added that battery would lie where surgery or treatment was performed
without consent, or where, apart from emergency situations, surgery or med-
ical treatment was given beyond that to which there was consent.43 By
awarding statutory precedence to the physician’s right to rescue, however,
the common law protections have been relegated to a position of lesser
importance. The right to refuse treatment has been further emasculated by
section 45 of the Criminal Code. Sometimes referred to as the Good Sa-
maritan provision, section 45 states that no criminal liability will lie for
41Supra, note 1 at 851. It is most interesting to note the paradoxical effect of s. 241. On one
hand, the patient cannot prevent the physician from attempting to save her life. On the other
hand, it is legally acceptable for a physician to prescribe and administer a medical treatment
which may ultimately accelerate the patient’s death as long as the standard of reasonable care
demanded by the common law and Criminal Code s. 198 has been met. Adoption of the
following formulation was suggested in Law Reform Commission of Canada, Euthanasia,
Aiding Suicide and Cessation of Treatment (Report No. 20) (Hull, Que: Supply & Services
Canada, July 1983) at 35 [hereinafter Report No. 20]:
199.2 Nothing in sections 14, 45, 198, 199 and 229 shall be interpreted as preventing
a physician from undertaking or obliging him to cease administering appropriate
palliative care intended to eliminate or to relieve the suffering of a person, for the
sole reason that such care or measures are likely to shorten the life expectancy of
this person.
This suggestion was reiterated in Law Reform Commission of Canada, SomeAspects ofMedical
Treatment and Criminal Law (Report No. 28) (Hull, Que.: Supply & Services Canada, March
1986) at 8 [hereinafter Report No. 28].
42105 N.E. 92 at 93 (1914).
43Reibl v. Hughes (1980), [1980] 2 S.C.R. 880 at 890-91, 114 D.L.R. (3d) 1, 14 C.C.L.T. 1
[hereinafter cited to S.C.R.]. In Law Reform Commission of Canada, Medical Treatment and
Criminal Law (Working Paper No. 26) (Hull, Que.: Supply & Services Canada, 1980) [here-
inafter Working Paper No. 26] at 71 and 90-91 it was suggested that the Criminal Code preserve
the common law tradition since the right to refuse treatment could be implied in the absence
of contrary statutory exception. Examples of specific exemptions included the ordering of
custody of insane persons (s. 545) and compulsory custody of the mentally ill (ss 465, 543,
608.2, 738(5) and 738(6)). Under s. 240 a medical practitioner can be required to take a blood
sample without the accused’s consent in order to establish serum alcohol levels. It is important
to note, however, that this statutory exception is made for evidentiary, not therapeutic, reasons.
McGILL LAW JOURNAL
[Vol. 32
operations which are performed skillfully and are reasonable in light of the
person’s state of health.44
III. Purposes of the Charter
At this intersection of majoritarian and counter-majoritarian interests,
the role of the Charter as a protector of rights and freedoms 45 should be
examined. By way of the broad language and phraseology used, somewhat
ambiguous rights and guarantees are thrown up as limitations upon the
powers of government as evidenced by section 32. These, nevertheless, must
guide the judiciary in their delicate balancing of interests between the in-
dividual and the State.
There are actually three groups of identifiable interests competing in
the right to die issue. Firstly, the medical profession is quite conspicuously
involved in a person’s choice to die. At once physicians may feel tom be-
tween witnessing the prolonged suffering of an individual and fearing civil
liability which could follow from failing to implement appropriate medical
intervention. 46 The patient-physician relationship as reflected in the gov-
erning common law and the medical Code of Ethics,47 however, is a con-
sensual one. In Reibl v. Hughes” the Supreme Court of Canada suggested
that competent adults have the right to make their own medical decisions
even if such decisions are unwise. 49 An informed person’s refusal to undergo
further medical treatment terminates the physician’s duty and thus makes
the assertion of a medical interest untenable, though the temptation will
remain for physicians to intervene due to their interest in possible discov-
eries important to medical research.
44Professor Dickens indicates that where “death is irresistible and imminent”, however, life
prolonging extraordinary measures may be refused by patients: see supra, note I at 876. Con-
sequently, the provision of ordinary care in concert with an individual’s physical and emotional
resources will determine whether or not that person achieves natural death.
4SAccording to Russell, supra, note 35 at 31-43, political leaders who were the chief sponsors
of the Charter also intended it to be a promoter of national unity. See also Hogg, supra, note
13 at 651-52.
flict?” (1972) 33 U. Pitt. L. Rev. 628 at 636.
46See B.A. Gazza, “Compulsory Medical Treatment and Constitutional Guarantees: A Con-
47Canadian Medical Association, Code of Ethics, June 1978, Canon 5: “An ethical physician
… will recognize that the patient has the right to accept or reject any physician and any medical
care recommended to him …
48Supra, note 43 at 16.
49Opponents of the right to die would argue that opting for death over life demonstrates not
unwise decision-making, but unsoundness of the mind. Cultural and statutory presumptions
support this position and thus elucidate the precariousness in a person asserting the right to
die. See Report No. 28, supra, note 41 at 17, where the right to refuse treatment is recommended.
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The interests of society are multiple in regard to the right to refuse
treatment. These embrace the power to provide for the health, welfare and
safety of society,50 and the power of parens patriae.51 Social interests also
arise in protecting third parties from the emotional distress caused by the
death of a relative,52 as well as the need to ensure their financial support if
the person who has died was the primary wage earner.
Naturally, the third interests are those of the person asserting the right
to die. Principles of inviolability of the body and autonomy of the person
are the bases for asserting rights to privacy, freedom of religion and freedom
of contract. 53 In addition, the risk to the patient inherent in any imposed
medical intervention directly threatens the perso x’s life, liberty 54 and se-
curity. Finally, of perhaps fundamental significare is the reality that by
refusing individuals the right to die, their pain and suffering are prolonged. 55
Having identified the interests involved, the truly formidable nature of
reconciling one against the other is realized. Section 52, the primacy pro-
vision of the Constitution Act, 198256 is central to the weighing of these
interests. It states:
The Constitution of Canada is the supreme law of Canada, and any law that
is inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.
It is clear that, if the individual interest prevailed, the Criminal Code pro-
visions inconsistent with the right to die would be invalidated. In order for
the “interest” to prevail, however, it must be classifiable as a guaranteed
right or freedom as expressly contained within the Charter. In other words,
is the “right” to die an assertion of self-determination or a constitutionally
recognized interest? To address this question attention turns to specific Charter
provisions.
50The concern for the safety of society is embodied in the “wedge objection”. The basis of
this apprehension is that if euthanasia were legalized the consequences would lead to non-
consensual mercy killings at the least, and indiscriminate murder at the most. The wedge theory
receives a caustic disposal by the late Professor R. Samek in “Euthanasia and Law Reform”
(1985) 17 Ottawa L. Rev. 86 at 94-98 and 114.
Natural Death Act” (1980) 20 Santa Clara L. Rev. 971 at 975-76.
51See Working Paper No. 26, supra, note 43 at 70-77.
52See C. Beraldo, “Give Me Liberty and Give Me Death: the Right to Die and the California
53See Working Paper No. 26, supra, note 43 at 70-77.
54See P. Garant, “Fundamental Freedoms and Natural Justice (Section 7)” in Tarnopolsky
55G. Fairweather rhetorically questioned how an individual’s pain and suffering could be
balanced against public risk in “Human Rights in Health Care” (Third National Conference
on Health Care, 31 October 1985, Ottawa) [unpublished].
56Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11.
& Beaudoin, eds, supra, note 15, 257 at 269.
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IV. The Pertinent Charter Provisions
A. Section 7 –
Life, Liberty and Security of the Person
Section 7 is located under the “legal rights” portion of the Charter. It
states:
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 fun-
damental justice.
As this is a constitutional provision, its meaning cannot be determined
merely by referring to a dictionary or rules of statutory construction.
The goal of Charter interpretation was expressed in Hunter v. Southam
Inc.57 Mr Justice Dickson (as he then was) stated that a constitution, which
is joined by a charter of rights, functions to provide a framework for the
exercise of legitimate governmental power and unremitting protection of
individual liberties.
In ordei to breathe life into these functions, a broad perspective is
required in Charter interpretation. Some assistance in the development of
such a perspective may emerge through examining the practices in other
jurisdictions. 58 Accordingly, some parallel constitutional and statutory pro-
visions from other democracies are presented.
1.
Other Jurisdictions
In the United States, a terminally ill person can assert the right to die
either as an incident to the constitutionally protected right to privacy, or as
a statutory right in some states. The American Bill of Rights59 expressly
guarantees aspects of the right to privacy in several provisions. It is generally
thought that the right to make a positive choice emerges from the First
Amendment guarantee of freedom of religious exercise, of speech, and of
the press.60 Specific instances of the right to be left alone are explicitly
guaranteed in the Third, 61 Fourth62 and Fifth 63 Amendments. Further, since
to S.C.R.].
57(1984), [1984] 2 S.C.R. 145 at 155, 11 D.L.R. (4th) 641, 41 C.R. (3d) 97 [hereinafter cited
58See the discussion, supra, note 30.
59U.S. Const. amends I-X.
60U.S. Const. amend. I.
61″No Soldier shall, in time of peace be quartered in any house, without the consent of the
62″The right of the people to be secure in their persons … against unreasonable searches
63″No person shall … be compelled in any criminal case to be a witness against himself”:
and seizures, shall not be violated”: U.S. Const. amend. IV.
Owner”: U.S. Const. amend. III.
U.S. Const. amend. V.
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privacy is subsumed by liberty,64 the Fourteenth Amendment confers the
right of privacy by its guarantee of liberty.65 The courts have accordingly
recognized a constitutional right of privacy in many instances dealing with
family life and procreation. 66
In the landmark case of Re Quinlan,67 the Supreme Court of New Jersey
ruled that the unwritten constitutional right of privacy 68 was broad enough
to encompass a patient’s decision to decline medical treatment in certain
circumstances. The Court granted Mr Quinlan express power to discontinue
all the extraordinary procedures which had been necessary to sustain his
daughter’s vital processes. Individual privacy rights were allowed to prevail
over the State interest in light of the following factors: Karen’s prognosis
was extremely poor; she would never resume a cognitive life; and the in-
vasion of her body was considerable since she required 24-hour intensive
nursing care, antibiotics, a respirator, feeding tube and catheter.
More recent cases have considered the privacy interest and upheld the
individual’s right to discontinue life-sustaining treatment. In the case of Re
Spring,69 the Supreme Court of Massachusetts adumbrated additional fac-
tors to be considered when faced with the issue of discontinuing medical
treatment,70 which included the following: the extent of impairment of the
person’s mental faculties; whether the person is in the custody of a state
institution; what the patient’s prognosis would be with or without the pro-
posed treatment; the complexity, risk and novelty of the proposed treatment;
its possible side effects; the patient’s level of understanding and probable
reaction; the urgency of the decision; the consent of the patient, spouse or
guardian; the good faith of those who participate in the decision; the clarity
64See Beraldo, supra, note 52 at 977.
65U.S. Const. amend. XIV, s. 1.
6.6For example, the courts have upheld the right to privacy in conjunction with the following
issues: abortion, in Roe v. Wade, supra, note 26; marriage, in Loving v. Virginia, 388 U.S. 1
(1967); education, in Meyer v. Nebraska, 262 U.S. 390 (1923). In Eisenstadt v. Baird, 405 U.S.
438 (1972), the court suggested that the right to be left alone should be extended to other
decisions involving intimate and important issues.
67355 A.2d 647, 70 N.J. 10, 79 A.L.R. 3d 205 (1976) [hereinafter Quinlan].
68Kaplan, infra, note 77 at n. 3 comments that although the Court did not use the term
“right to die”, this became the practical effect in granting the “right to privacy”. In addition,
it is interesting to note that the court included the right to privacy under the broader class of
“rights of personality”. Although such a class of rights is recognized in Canada under defamation
theory, pursuing this in order to assert a constitutional right to die offers no greater force than
using the common law right to refuse medical treatment.
69405 N.E.2d 115 (1980) [hereinafter Spring].
7VThe Quinlan and Spring cases deal with continuation of treatment of mentally incompetent
persons, hence the inclusion of elements pertaining to the bona fide character of guardians’
acts and to the question of mental capacity.
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of professional opinion as to what is good medical practice; the interests of
third persons; and the administrative requirements of any institution involved.
The Charter guarantees many of the same civil liberties which are con-
tained in the American Bill of Rights. The right to make positive choices
is reflected in the fundamental freedoms granted in section 2. 7 1 Similar rights
to be left alone are found in Charter sections 8 (the right to be secure against
unreasonable search and seizure) and 13 (the right to not be compelled to
give self-incriminating evidence). Finally, the guarantee of liberty is pro-
vided in section 7; but, unlike the United States, the right of privacy being
consummated by these underlying protections is uncertain. In a wiretapping
case, R. v. Rowbotham, 72 Mr Justice Ewaschuk did not accept the defense’s
argument that section 7 created a right to privacy or zones of privacy. His
reasoning was based on the express rejection of a separate right of privacy
by the Joint Committee on the Repatriation of the Constitution. 73
Later, however, in Hunter v. Southam Inc., Mr Chief Justice Dickson
stated that the public had an interest in being “left alone by government”. 74
Whether this presupposes the existence of an individual’s right to privacy
is uncertain. It should be borne in mind that these dicta were made in the
context of using section 8 of the Charter to protect individuals against
unreasonable search and seizure. Historically, these common law protections
were based on the right to enjoy property and were affiliated with trespass
laws. 75 To attempt, therefore, construing these remarks as endorsing a right
to a good death under section 7 may represent an unwarranted leap of faith.
For the institutionalized terminally ill person in Canada there may be
an additional factor operant in the denial of a right to privacy. Professor
Thompson propounds that individuals forego their right to privacy when
71Section 2 of the Charter states:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the
press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
72(1984), 11 C.R.R. 302, 42 C.R. (3d) 164 (Ont. H.C.) [hereinafter cited to C.R.R.].
73Ibid. at 310.
74Supra, note 57 at 159.
75Ibid. at 157.
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they are the recipients of public funding.76 In light of the considerable public
expenditure required to maintain the life of a terminally ill patient, this is
particularly ironic. The individual’s life is so devoid of quality that death
is perceived to be preferable. The person is debilitated to such a degree that
government-funded institutionalization is required. The right of privacy
which would allow the person to choose release from suffering can now be
denied, however, because she or he is institutionalized.
In addition to the constitutional right of privacy, some American states
extend statutory protection for medical decision-making in the form of “nat-
ural death” legislation. 77 The California Natural Death Act 78 exemplifies
such legislation, and is predicated on the conviction that adults have the
fundamental right to control decisions pertaining to their own medical care.
The Act allows individuals with terminal disease the right to withdraw from
medical procedures which prolong life and which may cause a loss of dignity
and protracted suffering. Further, in balancing other interests, the legislation
provides immunity for health professionals from civil and criminal liability
when they withhold or withdraw life-sustaining procedures according to the
patient’s directives. Failure by the physician to effectuate the patient’s di-
rective, on the other hand, constitutes unprofessional conduct.
A British legislative proposal dealing with euthanasia was introduced
into the House of Lords in 1936 under the sponsorship of the English Eu-
thanasia Society.79 The Bill failed to pass largely because the procedural
safeguards it contained were felt to “bring too much formality into the sick
room. ’80 The euthanasia legislation movement underwent a period of in-
activity until it resurged in the 1960’s. In 1969 the Voluntary Euthanasia
Act was proposed, but once again failed to pass on the basis of poor drafting,
vague definition of terms and procedural problems.81
76R. Thompson, “The Charter and Child Protection: The Need for a Strategy” (1986) 5 Can.
J. Fam. L. 53 at 78 and 57. Referring to the Charter as “an empty document for the poor”,
Thompson states: “The right to privacy flows from the right to property and those on the
public dole forego their privacy. . .”. This assertion was made in reference to the regular public
inspection and discipline welfare families undergo to ensure their parenting standards are
commensurate with their receipt of public funds. On the other hand, H.P Glenn contends that
there can be no theoretical justification for the assertion that the right to privacy is based on
property rights, since the principal interests protected by the right are solitude and anonymity
to which no commercial value can be attached. See “The Right to Privacy in Quebec Law”
in D. Gibson, ed., Aspects of Privacy Law (Toronto: Butterworths, 1980) c. 3 at 49.
77For a comprehensive survey dealing with such legislation in the U.S., see R.P. Kaplan,
“Euthanasia Legislation: A Survey and a Model Act” (1976) 2 Am. J.L. Med. 41.
78Supra, note 7.
79See G. Williams, The Sanctity of Life and the Criminal Law (New York: Alfred A. Knopf,
1957) at 331. See also Kaplan, supra, note 77 at 52-53.
8Williams, ibid. at 334.
81See H. Trowell, The Unfinished Debate on Euthanasia (London: SCM Press, 1973) at 17-
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The State of South Australia enacted a Natural Death Act in 1983.82
Like the California statute, this Act allows terminally ill persons to withdraw
from life-prolonging medical/surgical procedures. In addition, provisions
are incorporated to insulate medical practitioners from liability when they
are acting according to the patient’s directives and in good faith. Another
feature it shares with the California Act is a specific prohibition on causing
or accelerating death by means other than withdrawing extraordinary med-
ical interventions.
In comparison to these other jurisdictions, Canada has been relatively
inactive regarding the introduction of euthanasia legislation. A Natural Death
Act was proposed for Ontario in 1977. This measure was approved on
second reading by a sizeable majority of the Legislature and was sent to
Committee for detailed consideration. The process was halted by a prov-
incial election, however, and it has remained dormant since that time.8 3
Two additional reference sources are found in the International Cove-
nant on Civil and PoliticalRights84 and the European Convention on Human
Rights.8 5 These instruments are treaties and as such are not incorporated
into our domestic laws. Nonetheless, they influence interpretation of the
Charter since statutes, and arguably the Constitution,8 6 should be inter-
preted in conformity with international law.87
The International Covenant recognizes the “inherent dignity of the hu-
man person” in its Preamble and has a number of provisions which may
touch on the right to die. Article 1 grants the right of self-determination and
accordingly the right to determine political status and to pursue economic,
social and cultural development. Article 6 provides for the inherent right
to life and procedural safeguards pertaining to capital punishment. A parallel
to section 7 of the Charter is seen in Article 9(1) which states:
Everyone has the right to liberty and security of the person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedures as are estab-
lished by law.
82Supra, note 7.
83See Dickens, supra, note 1 at 873.
8416 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47 (in force in Canada 19 August
1976) [hereinafter International Covenant].
854 November 1950, 213 U.N.T.S. 221, E.T.S. No. 5 [hereinafter Convention].
86See Hogg, supra, note 13 at 662.
87See R. v. Videoflicks Ltd (1984), 48 O.R. (2d) 395 at 420, 14 D.L.R. (4th) 10, 15 C.C.C.
(3d) 353 (C.A.) [hereinafter cited to O.R.] where TarnopoIsky J.A. said: “Although our con-
stitutional tradition is not that a ratified treaty is self-executing within our territory, but must
be implemented by the domestic constitutional process … unless the domestic law is clearly
to the contrary, it should be interpreted in conformity with our international obligations”. See
also, D. Turp, “Droit international et interpretation de Ia Charte” (1984) 18 R.J.T. 353.
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The subsections which follow in Article 9 all deal with issues of arrest and
detention. Article 17 expressly recognizes a right to privacy and provides
for protection against unlawful interference with this right.
Canada ratified the International Covenant in 1976 and under inter-
national law is bound to comply with its provisions. At first blush it may
appear that Canada is therefore obliged to breathe life into the provisions
of self-determination, liberty and privacy. However, there are substantial
difficulties in trying to use the International Covenant as a springboard to
advocate a constitutional right to die. Firstly, compliance with the Inter-
national Covenant does not need to be embodied in the Constitution,88 since
statutory and administrative enactments are sufficient to fulfill these obli-
gations.89 Thus Criminal Code provisions or institutional policies pertaining
to autonomy and procedural safety in medical decision-making could be
viewed as adequately discharging international obligations. Secondly, the
language used in the articles of the International Covenant as seen within
that context may not lead to a presumption in favour of euthanasia. For
example, self-determinism in Article 1 is used in conjunction with political
status, and economic, social and cultural development. Against this back-
ground it may be difficult to construe such language as guaranteeing absolute
autonomy in all facets of medical decision-making. Similarly, deprivation
of life is viewed in the context of procedural fairness in relation to death
penalties, and the liberty interest is expressed in association with arrest and
detention. Hence it may be untenable to attempt on these bases to fashion
a constitutional right to withdraw from life-sustaining procedures. The right
to privacy contained in Article 17 appears to offer promise to those making
such an intimate decision as the discontinuation of treatment. Since it is
counterposed to “unlawful interference”, however, it lends no assistance to
the euthanasia issue. Interference with death-inducing acts or omissions is
specifically required by the Criminal Code and therefore cannot be viewed
as unlawful intervention.
The European Convention on Human Rights came into force in 1953,
but Canada is not a party to the Convention since it is a regional treaty. It
has been stated that the Convention nonetheless has persuasive value in
assisting Canadian courts to interpret the Charter, since many of the same
civil liberties are guaranteed in both documents. 90 However, a significant
departure from this line of reasoning was recently witnessed.
88See Hogg, supra, note 13 at 663.
89See W.S. TarnopoIsky, “A Comparison Between the Canadian Charter of Rights and Free-
doms and the International Covenant on Civil and Political Rights” (1983) 8 Queen’s L.J. 211
at 212.
90See Hogg, supra, note 13 at 663.
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In R. v. Morgentaler,9′ Mr Chief Justice Parker observed that the Eu-
ropean Commission on Human Rights had narrowly interpreted the words
“liberty and security of the person” taken from Article 5 of the Convention.
He read from the Commission’s Decisions and Reports:
“Personal liberty” in Article 5 means primarily freedom from arrest and de-
tention. The right to security of person comprises the guarantee that individuals
will be arrested and detained only for the reasons and according to the pro-
cedure prescribed by law. This is a guarantee against arbitrariness in the matter
of arrest and detention. 92
He then went on to state, “I do not find that the interpretation of the phrase
‘liberty and security of person’ in the European context offers much per-
suasive guidance in resolving the issues before this court.” 93 The decision
was based partly on structural differences between section 7 of the Charter
and Article 5 of the Convention, since section 7 is not restricted to the rights
in sections 8 to 14. Further, since the Convention was drafted as a process
of negotiation among sovereign States, it was felt that the legal systems
involved were significantly different from the Canadian context. The Con-
vention thus has an uncertain role to play in determining what rights may
be protected under section 7 of the Charter.
In summary, other jurisdictions offer constitutional or statutory ap-
proval for terminally ill persons to withdraw from life-sustaining treatment.
Despite this, however, analogous rights have not been accorded in Canada.
This is attributable to political and judicial reluctance to extend the liberty
interest to include a right to privacy, the phenomenon of public funding in
the provision of health care services, the inertia of the legislative process
concerning euthanasia, and the contextual inadequacy or ambiguous lan-
guage found in the treaties which influence Charter interpretation.
In order to ascertain if a constitutional right to die can yet be asserted
by section 7 of the Charter, attention turns to domestic jurisprudence.
2.
Interests Protected under Section 7
A discussion of which interests are protected begins with addressing
how many rights there are in section 7. The courts have focussed on the
structure of section 7 to answer the question of whether it contains a single
right or two independent rights. In Operation Dismantle, Wilson J. sum-
marized this issue:
91(1984), 47 O.R. (2d) 353 at 400-1, 12 D.L.R. (4th) 502, 41 C.R. (3d) 193 (H.C.) [hereinafter
cited to O.R.], rev’d on other grounds (1985), 52 O.R. (2d) 353, 22 D.L.R. (4th) 641 (C.A.).
The Court of Appeal substantially agreed with Parker A.C.J.H.C.’s analysis.
92Eur. Comm. H.R., No. 7050/75, Report of 12 October 1978,Arrowsmithv. UnitedKingdom,
19 D.R. 5 at 18.
93Supra, note 91 at 403.
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The appellants submit that on its proper construction s. 7 gives rise to two
separate and presumably independent rights, namely the right to life, liberty
and security of the person, and the right not to be deprived of such life, liberty
and security of the person except in accordance with the principles of funda-
mental justice. In their submission, therefore, a violation of the principles of
fundamental justice would only have to be alleged in relation to a claim based
on a violation of the second right. As Marceau J. points out in his reasons,
the French text of s. 7 does not seem to admit of this two-rights interpretation
since only one right is specifically mentioned. Moreover, as the respondents
point out, the appellants’ suggestion does not accord with the interpretation
that the courts have placed on the similarly structured provision in s. 1(a) of
the Canadian Bill of Rights ….94
The significance of pursuing this debate appeared to centre on whether the
interpretation of section 7 should involve procedural or substantive review.
Wilson J. articulated this as follows:
The appellants’ submission, however, touches upon a number of important
issues regarding the proper interpretation of s. 7. Even if the section gives rise
to a single unequivocal right not to be deprived of life, liberty or security of
the person except in accordance with the principles of fundamental justice,
there nonetheless remains the question whether fundamental justice is entirely
procedural in nature or whether it has a substantive aspect as well. 95
Some of these aspects were clarified by the watershed case, Reference
Re Section 94(2) of the Motor VehicleAct R.S.B. C., 1979.96 Mr Justice Lamer,
speaking for the majority, stated that the term “principles of fundamental
justice” did not constitute a right. Instead he found that this term exists as
a qualifier of the right not to be deprived of life, liberty and security of the
person. Further, he held that fundamental justice involves substantive as
well as procedural review in order to secure for persons “the full benefit of
the Charter’s protection.” 97 His Lordship then adopted a purposive analysis
which was the approach set forth by the court in Hunter v. Southam Inc.98
In Big M Drug Mart Mr Chief Justice Dickson referred to this purposive
definition:
The meaning of a right or freedom guaranteed by the Charter was to be as-
certained by an analysis of the purpose of such a guarantee; it was to be under-
stood, in other words, in the light of the interests it was meant to protect.99
94Supra, note 31 at 487, referring to Miller v. R., infra, note 140.
95Operation Dismantle, ibid. at 487-88.
96Supra, note 30. In this reference case the analysis of s. 7 was limited to determining the
97His Lordship quoted Dickson C.J.C. from R. v. Big M Drug Mart Ltd (1985), [1985] 1
S.C.R. 295 at 344, 18 D.L.R. (4th) 321, [1985] 3 W.W.R. 481 [hereinafter Big M Drug Mart
cited to S.C.R.].
scope of the term “principles of fundamental justice”.
98Supra, note 57.
99Supra, note 97 at 344.
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[Vol. 32
The rights to be protected under section 7 were considered by the court
in R. v. Morgentaler 00 Mr Chief Justice Parker stated:
In my opinion, a determination of the rights encompassed by s. 7 should
begin by an inquiry into the legal rights Canadians have at common law or
by statute. If the claimed right is not protected by our system of positive law,
the inquiry should then consider if it is “so deeply rooted in the traditions and
conscience of our people as to be ranced as fundamental” …. 101
Enquiring into common law and statutory rights of terminally ill per-
sons would thus far indicate the following: all adults with the capacity to
consent have the common law right to refuse medical treatment and the
right of self-determination. If patients attempted to extend these by claiming
the right to die, however, it would clearly conflict with Criminal Code pro-
visions which function to promote life. In the end, the common law is
available only if a statute does not prescribe a contrary result. 10 2 This was
demonstrated in A.G. Canada v. Notre Dame Hospital.10 3 The Quebec Su-
perior Court authorized the respondent to perform the surgery or treatments
needed to remove a metal wire from the body of Niemiec (which also
included feeding him as it was seen as an appropriate pre-operative step).
The learned trial judge recognized the legal right to self-determination, but
held that this right could not be used to facilitate the choice to die.
Our traditions and conscience must also be searched to ascertain which
values are fundamental. Professor MacKay warns that this undertaking can
be problematic since the historical approach protects the status quo and
traditional values.10 4 Certainly that is the case here, where formerly medical
technology did not have the sophistication to extend life beyond unreason-
able, unnatural bounds and patients willingly abdicated their decision-mak-
ing roles to the medical patriarchs. As was indicated earlier, ours is a life-
celebrating society, but one which is uncomfortable in dealing with the
implications of technical prowess. Thus the claimed right is not deeply
rooted in our country because until now there was no need for this to be
SO.
10Supra, note 91. To arrive at his decision, the learned High Court Judge adopted the mode
of reasoning used by Estey J. in Skapinker, supra, note 22.
‘1Supra, note 91 at 405-6, quoting a statement made by Cardozo J. in Palko v. Connecticut,
302 U.S. 319 (1937) at 325, quoting himself in Snyder v. Massachusetts, 291 U.S. 97 (1934)
at 105.
’02See R.A. Sedler, “Constitutional Protection of Individual Rights in Canada: The Impact
of the New Canadian Charter of Rights and Freedoms” (1984) 59 Notre Dame L. Rev. 1191.
103(1984), [1984] C.S. 426, 8 C.R.R. 382.
“4Supra, note 27 at 329.
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Some assistance in resolving the contemporary nuances of this issue
may be had by addressing a subsidiary concern. How many rights are en-
compassed by the words “life, liberty and security of the person”?
Madam Justice Wilson alluded to a single concept for -fife, liberty and
security of the person” in Singh v. Minister of Employment and Immigra-
tion. 0 5 She stated that if the narrow approach of section 7 was adopted,
that is, that section 7 expresses only one right, it “must encompass freedom
from the threat of physical punishment or suffering as well as freedom from
such punishment itself.”10 6 Recognition of a constitutional right to be free
of physical suffering obviously has enormous implications for the terminally
ill. Of additional assistance is a decision of the Ontario Court of Appeal in
R. v. Videoflicks Ltd. The concept of life, liberty and security of the person
was considered as a unit and was seen to “relate to one’s physical or mental
integrity and one’s control over these.”‘ 1 7 As attractive as it is to attempt
asserting the constitutional right to die on this authority, the context sup-
porting this statement should be examined. This case revolved around Sun-
day closing laws. Although one could speculate that the sweeping language
used was designed to deal with more than retail hours, it requires a con-
siderable leap of faith to therefore claim a right to a good death.
Since the “single right theory” was neither adopted nor repudiated in
Operation Dismantleand Singh, the relevant component parts will be addressed.
3.
Life
The Law Reform Commission’s Working Paper No. 28 proposed three
principles based on the relationship between the quality of life and the
sanctity of life.’ 0 8 The first principle is a presumption in favour of life. The
105(1985), [1985] 1 S.C.R. 177 at 204, 58 N.R. 1 [hereinafter Singh cited to S.C.R.].
1061bid. at 207 [emphasis added].
107Supra, note 87 at 433.
I08Law Reform Commission of Canada, Euthanasia, Aiding Suicide and Cessation of Treat-
ment (Working Paper No. 28) (Hull, Que: Supply & Services Canada, 1982) at 36-39 [hereinafter
Working Paper No. 28]. These principles were predicated on three conclusions arrived at by
E. Keyserlingk, in Law Reform Commission of Canada, Sanctity of Life or Quality of Life in
the Context of Ethics, Medicine and Law (Study Paper No. 3) (Hull, Que.: Supply & Services
Canada, 1979) at 70 [hereinafter Study Paper No. 3]:
(1) The indeterminate sanctity of life principle alone cannot be used to determine
in advance all treatment decisions, without consideration as well of the quality of
the lives in question. To do so would be to use that principle as a “decision-avoiding”
not a “decision-making” guide.
(2) The meaning of quality of life in the medical context need not mean wholly
subjective judgments about the relative worth, value, utility or equality of the lives
of persons. Purged of connotations of “relative worth” or “social utility”, the func-
tion of quality of life thinking in this context … can be one of improving and
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second principle is the recognition that all human beings are masters of
their own destinies except if the exercise of this right affects public order
or the rights of others. Third is the principle that human life should be
considered from “qualitative” as well as “quantitative” perspectives:
The autonomous person has the right to define his own priorities and require-
ments in terms of the effects of treatment or non-treatment upon the quality
of his life. Others should respect these priorities. If the person is not autono-
mous, others must determine these priorities, taking into account the utility
of the act in light of the benefit to the person involved. 09
These principles of life promote the argument that “life” is much more
than the mere beating of a heart. Life within our democratic political tra-
ditions surely connotes a measure of dignity which exceeds basic physio-
logical function. The difficult question to address in advancing this notion,
however, is deciding how far the limits of quality extend. Further, consid-
eration must be given to the standard of quality to be used in deciding the
demarcation between acceptable and unacceptable quality.
It is submitted that in dealing with a properly informed, competent
adult, the limit of unreasonable quality of life must be decided by the affected
individual. The State has no sensors which perceive the discomforts of
bodily invasion by drugs, tubes, electrodes or injections. There are no in-
struments which can register where misery descends from tolerable to unen-
durable levels for any given person. This point was most forcefully made
by Samek: “If it is right to keep the government out of the bedrooms of
the nation, it surely has no place on our deathbeds.” 110
4.
Liberty
Defining the essence of liberty is a difficult task. Indeed the Court in
Re Mia and Medical Services Commission of B.C. stated that liberty is “so
grand a concept that it may not be possible to capture its meaning in words.””
benefiting the patient, and can focus on objective criteria and needs.
(3) In particular there are two such quality of life criteria relevant to decisions to
treat, or to continue treatment or to stop treatment. The first considers the capacity
to experience, to relate. The second considers the intensity and susceptibility to
control of the patient’s pain and suffering. If despite treatment there is not and
cannot be even a minimal capacity to experience, and to relate, or if the level of
pain and suffering will be prolonged, excruciating and intractable, then a decision
to cease or not initiate treatment (of for instance a comatose patient) can be pref-
erable to treatment.
09Working Paper No. 28, ibid. at 39.
1 Supra, note 50 at 114.
111(1985), 17 D.L.R. (4th) 385 at 411, 61 B.C.L.R. 273 (S.C.), quoting from the judgment of
Finch J. in R. v. Robson (1984), 11 D.L.R. (4th) 727 at 732, 56 B.C.L.R. 194, 41 C.R. (3d) 68
(S.C.), aff’d 19 D.L.R. (4th) 112, 45 C.R. (3d) 68, 19 C.C.C. (3d) 137 (B.C.C.A.) [hereinafter
cited to 11 D.L.R.].
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EUTHANASIA AND SELF-DETERMINISM
In the United States it has been held to comprehend a wide range of inci-
dental freedoms including the right “to be left alone”, 112 the freedom to
contract 13 and to enjoy property,” 4 the right to take up any lawful occu-
pation without government interference,” 5 as well as the rights to acquire
useful knowledge, to marry, establish a home, raise children and pursue
religious worship.” 6 In addition, without due process, people cannot be
deprived of their good reputations,’ 17 or of their right to choose a personal
style of appearance.18
The context in which “liberty” is used in the Charter is conducive to
a broad interpretation and makes the expansive American constructions
persuasive. 1’9 Although found under the “legal rights” section of the Charter,
it has been argued that section 7 is a general provision as opposed to the
specific nature of the other sections dealing with fundamental freedoms and
legal rights. As such, section 7 could be said to be a residual provision which
does not augment the rights expressed in other Charter sections.’ 20 Thus,
the narrower position, that liberty merely pertains to freedom from physical
restraint is weakened,’21 since rights safeguarding against arbitrary detention
and arrest are amply provided in sections 9 to 11.
Liberty can thus be seen to embrace a right which is distinct from issues
of physical restraint. Moreover, liberty implies a freedom to make choices.
Considered in conjunction with the persuasive and broad American juris-
prudence, one could therefore contend that “liberty” in section 7 consti-
tutionally protects freedom and autonomy in medical decision-making.
5.
Security of the Person
The thrust of the Criminal Code provisions in question is to protect
and promote life. In preventing a terminally ill person from discontinuing
medical treatment, the State can be said to be enforcing “security of the
person” even if over the protests of the patient.
” 2Pavesich v. New England Life Ins., 50 S.E. 68, 122 Ga. 290 (Sup. Ct 1905).
” 3Board of Regents of State Colleges v. Roth, 408 U.S. 564 (7th Cir. 1972).
” 4Blauvelt v. Beck, 76 N.W.2d 738, 106 Ia. 492 (Neb. Sup. Ct 1956).
,15ibid
116Meyer v. State of Nebraska, 262 U.S. 390 (1923).
1t7Goss v. Lopez, 419 U.S. 565 (1975).
“Kelley v. Johnson, 425 U.S. 238 (1976).
“9See J.E. Magnet, Constitutional Law of Canada, vol. 2, 2d ed. (Toronto: Carswell, 1985)
’20Ibid, at 1150.
121This position emanates from that in the International Covenant, supra, note 84, wherein
Art. 9(1) deals with “liberty and security of the person” solely within the context of arrest and
detention.
at 1149.
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There is, however, another side to ensuring security of the person. The
medicotechnical interventions required to maintain life are not without
problems. Every medical treatment carries with it iatrogenic risks and the
potential for side effects which may vary from the imposition of discomforts
to death. These are only possibilities, however, and there is no predicting
which person will develop what technology-induced disorder. This is prob-
lematic considering the interpretation that “security of the person” was
given in Operation Dismantle122 Acts which might lead to consequences
that deprive (or threaten to deprive) individuals of their security of person
were not held to be contemplated by section 7.123 In other words, until
medical expertise evolves to the point where iatrogenic disease can be pre-
dicted with certitude, the patient is barred from claiming an interference
with security of the person. 24
B. Subsection 2(a) – Freedom of Conscience and Religion
The constitutional guarantee of religious freedom in subsection 2(a)
enshrines the rights to hold and profess beliefs openly, as well as observe
the essential practices demanded by the tenets of one’s religion.12 5 Mr Chief
Justice Dickson carefully discussed this freedom in Big M Drug Mart:
Freedom can primarily be characterized by the absence of coercion or con-
straint. If a person is compelled by the state or the will of another to a course
of action or inaction which he would not otherwise have chosen, he is not
acting of his own volition and he cannot be said to be truly free. One of the
major purposes of the Charter is to protect, within reason, from compulsion
or restraint. Coercion includes not only such blatant forms of compulsion as
direct commands to act or refrain from acting on pain of sanction, coercion
122Supra, note 31.
123Ibid. at 455.
124Wilson J.’s obiter in Singh, supra, note 105 may initially appear comforting since she
envisages freedom from the threat of physical suffering. Until the person actually becomes
symptomatic from physician-caused illness, however, the situation remains hypothetical and
the Charter is correspondingly unavailable.
125Tarnopolsky J.A. made this comment when considering s. 2 of the Charter in conjunction
with Art. 18 of the International Covenant in R. v. Videoflicks Ltd, supra, note 87 at 420. It
is most interesting to note another Ontario Court of Appeal decision rendered five months
after this: R. v. Tutton (1985), 44 C.R. (3d) 193, 18 C.C.C. (3d) 328, 14 C.R.R. 314 concerned
the refusal of parents to obtain medical assistance for their child because to do so would have
been contrary to a tenet of their faith. Tarnopolsky J.A. was a member of the unanimous court
which ruled that s. 2(a) of the Charter did not apply to this situation (leave to appeal to the
Supreme Court of Canada was granted on 23 May 1985).
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EUTHANASIA AND SELF-DETERMINISM
includes indirect forms of control which determine or limit alternative courses
of conduct available to others. 126
The person who wishes to refuse medical treatment on the basis of
religious freedom confronts the State’s interest in promoting life. To deter-
mine if the life-affirming Criminal Code provisions offend religious freedom,
their purpose and effects must be analyzed. 127 This approach was used in
the American case of Braunfield v. Brown128 and adopted by the Supreme
Court of Canada in Big M Drug Mart. The court held that legislation which
operates to advance the State’s secular interests is constitutionally valid. If
the legislation has a secular purpose but interferes by its impact on religious
freedom, however, it can be challenged for constitutional infirmity.129
The Criminal Code provisions which conflict with a person’s claim to
the right to refuse treatment are clearly secular. They operate solely to pro-
mote life and protect those who seek to uphold this goal. In some circum-
stances, however, the effects of these enactments result in interference with
religious practice. This was clearly demonstrated in a recent Ontario case.130
Lisa K. was a 12 year old Jehovah’s Witness diagnosed with leukemia. When
Lisa and her parents refused the administration of chemotherapy and blood
transfusions, the Children’s Aid Society of Toronto sought to establish that
she was a child in need of protection. Justice Main of the Ontario Family
Court ruled that pursuant to the Child Welfare Act, 13 1 Lisa was not in need
of protection and accordingly should have “the opportunity to fight this
disease with dignity and peace of mind.” 132 He predicated his finding on
the perception that she had “a well thought out, firm and clear religious
belief’ which would have been offended by forcing her to undergo unwanted
treatment. 133 Such a result is consistent with the notions of freedom ex-
pressed by Mr Chief Justice Dickson. To hold otherwise would have invited
State coercion in the form of administration of unwanted medical treatment.
’26Supra, note 97 at 336-37.
127Ibid. at 331.
128366 U.S. 599 (1961).
129Supra, note 97 at 316. This line of reasoning represents a departure from earlier Charter
jurisprudence. For example, in Re B. (1982), 2 C.R.R. 329 (Alta Prov. Ct) the legislation was
seen to affect Jehovah’s Witnesses in the exercise of their faith. Since the pith and substance
of the impugned legislation was not religion, however, no infringement of s. 2(a) was found.
130Children’s Aid Society of Metropolitan Toronto v. K and K (1985), 48 R.EL. (2d) 164
131R.S.O. 1980, c. 66, s. 19(l)(b)(i), (ix) and (xi).
13 2Children’s Aid Society, supra, note 130 at 171.
1331bid. Main J. also addressed the fact that Lisa had received one blood transfusion. He
accordingly found that she had been discriminated against on the basis of her religion and her
age pursuant to s. 15(1) of the Charter. In addition, he held that her right to security of the
person had been infringed.
(Ont. Prov. Ct, Fam. Div.) [hereinafter Children’s Aid Society].
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A constitutional recognition of the right to manifest one’s religious
beliefs has far-reaching implications for the terminally ill person. If an in-
dividual espouses no religion, however, pursuing a right to die under the
guarantee of freedom of conscience presents additional hurdles.
The scope of subsection 2(a) was significantly extended in Big M Drug
Mart. Chief Justice Dickson gave an expansive interpretation to the rights
guaranteed in general and to freedom of conscience in particular. He sought
to protect those, for example, atheists, agnostics and corporations,13 4 who
could not prove a genuinely held theistic belief. This approach was used by
the Ontario Court of Appeal in R. v. Videoflicks Ltd.135 Tarnopolsky J.A.,
speaking for the court, stated that freedom of conscience necessarily em-
braced the right not to have a religious basis for conducting one’s actions.
To merit constitutional protection, however, the behaviour in issue would
“have to be based upon a set of beliefs by which one feels bound to conduct
most, if not all, of one’s voluntary actions.”‘ 136
Any claim to the right to a good death in accordance with a consci-
entiously held belief still has to clear this hurdle. Cherishing beliefs about
human worth and dignity is one matter. Demonstrating that most, if not
all, actions are based on such convictions is entirely different and exceed-
ingly more complex. This is particularly true in the case of such a claim
being made by one person alone, since she will hold singular values regarding
the limits of reasonable life and will have an individual threshold for suf-
fering. The ability of a religious collective, for example Jehovah’s Witnesses,
to demonstrate that conduct is guided by belief is considerably easier given
the commonality of belief shared by many, the written testimony to these
beliefs and the frequent, uniform manifestation of the belief by the members.
In other words, the first instance presents a person who is experiencing an
event –
likely for the first time. She
arrives at the decision to withdraw from treatment after discovering personal
limits of endurance and re-ordering her priorities accordingly. In the second
instance, the person is a member of a recognizable group with well-known,
long-established beliefs, and she has been trained by religious doctrine to
arrive at only one conclusion. The difficulty in demonstrating a constitu-
tional right to die based on freedom of conscience, as opposed to religious
freedom, is therefore pronounced.’ 37
an incurable, progressive disease –
134Supra, note 97 at 314.
’35Supra, note 87 at 422.
’36Ibid.
137It is interesting to note the concomitant discriminatory result for members of a religious
faith as against an individual with privately held beliefs.
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EUTHANASIA AND SELF-DETERMINISM
C. Section 12 – Cruel and Unusual Treatment
Section 12 states:
Everyone has the right not to be subjected to any cruel and unusual treatment
or punishment.
To date there is no satisfactory definition of “cruel and unusual treatment”
for this Charter provision 138 or its Canadian Bill of Rights precursor.139
Both enactments have received cautious interpretation by the judiciary, and
the jurisprudence is largely confined to penal situations, as in the landmark
case of Miller v. R.146 Addressing the issue of “punishment” in that case,
Chief Justice Laskin stated that social and moral factors entered into the
consideration of the scope and application of subsection 2(b) of the Ca-
nadian Bill of Rights: “Harshness of punishment and its severity in con-
sequences are relative to the offence involved but, that being said, there
may still be a question … whether the punishment prescribed is so excessive
as to outrage standards of decency.”‘ 141 His Lordship further indicated that
the words “cruel” and “unusual” were not to be considered disjunctively.
Rather, he envisaged them as interacting terms which coloured each other
and conjunctively expressed a norm.142
The section 12 language “subjected to” and its Bill ofRights counterpart
“imposition” were considered by Chief Justice Parker in the Morgentaler
case. He concluded that both connote a conscious decision by the State. 43
In this instance, the State’s intention to promote life is clearly manifested
in the Criminal Code provisions which prohibit the withholding or with-
drawal of medical treatment. As a result, the person’s wish to die is disre-
garded, while uncomfortable, troublesome, non-curative medical intervention
continues to be administered.
138See Hogg, supra, note 13 at 778.
139S. 2 of the Canadian Bill of Rights, S.C. 1960, c. 44, reprinted in R.S.C. 1970, App. III,
states that “no law of Canada shall be construed or applied so as to … (b) impose or authorize
the imposition of cruel and unusual treatment or punishment…”.
140(1976), [1977] 2 S.C.R. 680 at 688, 70 D.L.R. (3d) 324 [hereinafter cited to S.C.R.].
l4IIbid, at 688. Factors used to determine if treatment was cruel or unusual under the Charter
had been considered in the court below by McIntyre J.A. in (1975), 63 D.L.R. (3d) 193 at 260,
24 C.C.C. (2d) 401 (B.C.C.A.) and adopted more recently in Soenan v. Director of Edmonton
Remand Centre (1983), 48 A.R. 31 at 40, 35 C.R. (3d) 206, 8 C.C.C. (3d) 224 (Q.B.). The
relevant factors were said to be as follows: that the treatment is in accord with public standards
of decency, that the treatment is necessary in light of available alternatives, and that the
treatment can be applied rationally in accordance with ascertainable standards.
142Miller v. R., ibid. at 689-90.
143Supra, note 91 at 414. The same reasoning appears to have been used by Laskin C.J.C.
in Morgentaler v. R. (1975), [1976] 1 S.C.R. 616 at 630-31, 53 D.L.R. (3d) 161.
REVUE DE DROIT DE McGILL
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The question then begged is whether or not unwanted medical therapy
is “cruel and unusual”. This juncture of severity of consequences, standards
of decency and individual human suffering presents the most troubling as-
pects of voluntary passive euthanasia. Non-curative medical intervention
which poses discomfort and possibly a threat to life itself is surely as harsh
a consequence as can be envisaged. Further, how can the prolongation of
such suffering, especially over the protests of the patient, be seen to serve
any standard of public decency?
It must be borne in mind that thresholds of pain tolerance and the
concomitant value one places on life are highly personal. In order to rec-
oncile this with concepts of public decency, therefore, the most appropriate
standard is that which was adopted for dealing with causation in informed
consent situations in Reibl v. Hughes.144 Chief Justice Laskin stated that
“aspects of the objective standard would have to be geared to what the
average prudent person, the reasonable person in the patient’s particular
position, would agree to or not agree to.’ 1 45 Further His Lordship stated
that special considerations affecting the particular patient were very mate-
rial, and it was essential that the patient put his own position forward.
Judging the quality of life of other persons was the pivotal issue in the
Dawson case. In the Provincial Court the learned trial judge found the
operation proposed to correct Steven’s blocked brain shunt exceeded “nec-
essary medical attention”. As such, she held that this was cruel and unusual
treatment which offended section 12 of the Charter.146
In the Supreme Court of British Columbia, Mr Justice McKenzie skirted
the issue of cruel and unusual treatment. He found that it was not the
prerogative of parents or the court to judge the quality of a person’s life to
be so low as to not deserve continuance. 147 Since His Lordship found that
withholding the surgery would not necessarily cause Steven’s death, his pain
could be prolonged. Accordingly, he reversed the Provincial Court decision.
144Supra, note 43.
145Ibid. at 899.
146Re S.D. (1983), [1983] 3 W.W.R. 597 (Prov. Ct), rev’d (sub nom. Superintendent of Family
and Child Service v. R.D. and S.D.) [1983] 3 W.W.R. 618, 42 B.C.L.R. 173 (S.C.) [hereinafter
Dawson cited to W.W.R.].
‘471bid. at 629. In the landmark case of Superintendent of Belchertown State School v. Sai-
kewicz, 370 N.E.2d 417, 373 Mass. 728 (D. 1977) the court dealt with a 67 year old retarded
man who had leukemia. The learned judge ruled that a person’s retardation doesn’t mean that
quality of life considerations should not be taken into account. Accordingly, it was decided
that the man would not receive palliative chemotherapy. By holding that the quality of life of
“a disadvantaged person” should not be judged by others, it is arguable that the Dawson decision
represents a violation of s. 15 equality rights. Using this reasoning it is interesting to speculate
if the same result would be reached had Steven been able to articulate the impoverished quality
of his own life.
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EUTHANASIA AND SELF-DETERMINISM
It is essential to note the context in which the presumption of life
standard was applied by the British Columbia Supreme Court in Dawson.
McKenzie J. stated:
This is not a “right to die” situation where the courts are concerned with people
who are terminally ill from incurable conditions. Rather it is a question of
whether S has the right to receive appropriate medical and surgical care of a
relatively simple kind which will assure to him the continuation of his life,
such as it is.148
His Lordship further stated that the court lacked jurisdiction to sanction
the termination of life “except for the most coercive reasons”. 49 Unfor-
tunately, circumstances which would illustrate such coercive reasons were
not explored by the court. In considering the context of the decision, how-
ever, (namely, that it was not a “right to die” issue), and given that Steven
could not assert his own wishes, it is conceivable that the “cruel and unusual
treatment” reasoning used in the Provincial Court has not been overruled.
In other words, a terminally ill person who is barred from discontinuing
treatment may claim a violation of section 12 rights without departing from
the Dawson decision.’ 50
At this point it is useful to summarize how sections 7, 2 and 12 affect
a patient’s argument that she may claim the right to die. Attempts to fashion
a Charter guarantee of freedom in medical decision-making are apt to meet
varying degrees of success depending on which Charter provisions are used.
Determination of the rights encompassed by section 7 can be made by
inquiring into rights conferred by positive law. Here the common law right
to self-determination is defeated by the statutory provisions which protect
life. Examining our traditions and conscience is similarly to no avail in
claiming a right to die, since previously it has not been possible to extend
life beyond reasonable bounds. Singh offers some hope by its inclusion of
the freedom from the threat of physical suffering as coming within the
purview of section 7. Although “life” and “liberty” have not been defini-
tively interpreted, arguments can be made that qualitative considerations
and freedom in decision-making are essential elements. This is particularly
14 Dawson, ibid.
149 Ibid.
,5o S. 12 of the Charter was used in argument in a similar case recently in Quebec: Couture-
Jacquet v. Montreal Children’s Hospital, (1986), [1986] R.J.Q. 1221 (C.A.). The Court of Appeal
refused the hospital’s request to authorize continued chemotherapy of a three-year-old cancer
victim, without referring to the Charter, on the grounds that the mother and grandmother’s
refusal of treatment was not “unjustified” (as per s. 42 of the Public Health Protection Act,
S.Q. c. P-35) considering the condition of the child. See also the comment on this case by E.
Keyserlinck, “Non-treatment in the Best Interest of the Child: A Case Comment on Couture-
Jacquet v. Montreal Children’s Hospital (1987) 32 McGill L.J. 413.
McGILL I_AW JOURNAL
[Vol. 32
true given that exegesis of the Charter is occurring with an eye to American
jurisprudence. “Security of the person” as against the discomforts and risks
of continued medical treatment is not apt to be of assistance unless the
person has actually developed iatrogenic symptomatology.
Subsection 2(a) holds variable results in claiming a right to withdraw
from medical intervention. A person can resist the administration of treat-
ment if that treatment would contravene a fundamental religious belief.
Asserting freedom of conscience is much more difficult, since the person
would have to demonstrate that belief in the right to death with dignity was
reflected in most, if not all, of her voluntary actions.
Interpretation of “cruel and unusual treatment or punishment” is re-
ceiving cautious, incremental expansion by the judiciary. Removing this
phrase from its historical penal applications holds some promise of assist-
ance to the terminally ill. Non-consensual administration of treatment which
prolongs suffering constitutes an infliction which may be seen to offend a
subjective standard of decency. Although this subjective standard corre-
sponds with the individuality of the pain experience and autonomy in de-
cision-making, it directly confronts the presumption of life standard in Canadian
jurisprudence. The availability of section 12 as a springboard to claim a
right to die is therefore questionable.
V. Whither Section 1?
The operation of section 1 makes it clear that the guaranteed rights and
freedoms in the Charter are not absolute. Rather, they are subject “to such
reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society.” Challenging legislation under the Charter ac-
cordingly contemplates two stages of judicial review.’ 5′ Initially the im-
pugned law is considered under the individual Charter provision in question.
In this instance, the pertinent areas of the Criminal Code would be analyzed
under sections 2, 7 and 12 of the Charter to ascertain if the right to die was
infringed. Should a limitation of a guaranteed right be established, section
1 of the Charter would be interpreted and applied to determine if the leg-
islation is reasonable and can be demonstrably justified in a free and dem-
ocratic society.
At the outset, however, the character of Charter sections 7 and 12 is to,
be considered, since by their own terms they are limited by notions of
reasonableness.’ 52 To illustrate, one must ask if, in Canada, it could ever be
151 See Re Federal Republic of Germany and Rauca (1983), 41 O.R. (2d) 225 at 240, 145
D.L.R. (3d) 638, 34 C.R. (3d) 97, 4 C.C.C. (3d) 385 (C.A.).
152 S. 2 is expressed in unqualified terms.
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EUTHANASIA AND SELF-DETERMINISM
reasonable to abridge an individual’s right to “life, liberty and security of
the person”. Similarly, can treatment which is “cruel and unusual” ever be
perceived as reasonable and justifiable in our society? Although no case law
is available to illuminate the issue with respect to section 12, there has been
judicial consideration of this issue under section 7. The right to life, liberty
and security of the person was seen as being already qualified in R. v.
Robson. 153 Further, in Singh, Wilson J. stated that there must be a com-
pelling reason to justify a review of section 7 under section 1.154 Since the
countervailing interest is the preservation of a human life, however, this
easily constitutes “a compelling reason” which consequently calls for a sec-
tion 1 analysis.
The burden of proof, which rested with the individual in establishing
an infringement of rights, shifts onto the State when the reasonableness of
the Criminal Code provisions is considered under section 1.155 It is therefore
incumbent on the State to establish that the Criminal Code provisions which
prevent terminally ill persons from discontinuing life-sustaining treatment
constitute reasonable limits on the right to die, are prescribed by law, and
can be demonstrably justified in a free and democratic society. State re-
sistance to the right to die will be discussed under each of these conditions.
A. Reasonable Limits
The reasonable limits argument can be cast as a conflict between the
individual rights of patients versus the collective rights of the medical profes-
sion and State.1 56 An articulate expression of these collective rights is found
in the Law Reform Commission’s Study Paper No. 3,157 where Keyserlingk
propounded three main reasons for the unacceptability of euthanasia to
society.
Medical fallibility was one justification for denying the right to with-
draw from life-sustaining treatment. This was based on an apprehension
that even a seemingly irrefutable prognosis could be wrong. It can hardly
be seen as humane, much less justifiable, however, to compel the admin-
istration of treatment. Such ministrations can be in themselves a risk to life
and entail the risk of causing severe side effects which are totally out of
proportion to the hard-won chance of a miracle. Moreover, medical infal-
libility also extends to the efficacy of analgesics in controlling pain. Key-
153 Supra, note 111 at 732.
154 Supra, note 105 at 219.
155 See Hunter v. Southam Inc., supra, note 57 at 169.
156 The specific interests giving rise to these rights were discussed above in section III (“Pur-
poses of the Charter”).
157 Supra, note 108.
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serlingk states that “control is now so well advanced that [cases of real
suffering] are increasingly rare.”‘ 58 With the greatest respect, this faith in
pharmacological effectiveness is not supported by empirical evidence. As
was mentioned earlier, 59 sixty to eighty percent of patients with advanced
cancer suffer moderate to severe pain. These people cannot be seen as merely
the “boundary case” upon which Keyserlingk hesitates to ground a profes-
sional ethic. 160
The second main argument advanced against euthanasia in the Study
Paper is the wedge theory’ 61 Samek easily disposed of this issue. At the
outset he suggested it was wrong to link euthanasia with killing –
rather
it could be defined as a desire to be dead. 162 Further, he thought it highly
unlikely that “a society that is honest and courageous enough to recognize
the need for euthanasia would turn the world into a paradise for killers.” 163
This was consistent with an argument on the “wedge” objection forwarded
by Glanville Williams. He stated:
It is said that a person who has taken life lawfully will then have his inhibitions
so far removed that he is likely to take life unlawfully. This may be true in
some applications, but it is ridiculous as applied to the physician who gently
and humanely extinguishes his patient’s life as the last service that he can
perform for him. ’64
This physician-patient relationship is the ground for the third main
objection to voluntary euthanasia. If the patient was allowed to die when
she wanted to, the physician would be required to be the agent of that death.
Keyserlingk has argued that such an agency would constitute a radical trans-
formation of the doctor’s present role and ethics to the detriment of both,
and that the “health of patient trust in physicians”‘ 65 would be adversely
affected.
These views do not reflect the true circumstances of the physician-
patient relationship. It has been suggested that terminal illness symbolizes
a physician’s helplessness and limitation of personal skills. 166 A fortiori, the
contention that physicians tend to have an above-average fear of death has.
been supported by empirical evidence which demonstrates that dealing with
158 Ibid. at 129.
159 Supra, note 3.
160 Supra, note 108 at 129.
161 Ibid. at 126.
162 Supra, note 50 at 96. Samek quoted from the Study Paper No. 3, supra, note 108.
163 Ibid.
164 Supra, note 79 at 315-16 [emphasis added].
165 Study Paper No. 3, supra, note 108 at 128-29.
166 For an informative summary of the issues involved, see R.M. Green, “Truth Telling in
Medical Care” in M.D. Hiller, ed., Medical Ethics and the Law: Implications for Public Policy,
(Cambridge, Mass.: Ballinger, 1981) 183 at 185.
1987]
EUTHANASIA AND SELF-DETERMINISM
death and dying issues causes tremendous anxiety amongst physicians. 167
These speak of anything but detached impartiality by physicians. In other
words, physicians’ decisions to continue life-prolonging treatment may have
more to do with physician death anxiety, than consideration of the indi-
vidual patient. In addition, the phenomenon of health consumer activism
has emerged from a growing mistrust of medical technique and decision-
making and as a response to the ongoing depersonalization and patriarchy
in physician-patient relations. 168 Finally, the “health of patient trust in phy-
sicians” is surely not enhanced by forcing the patient to endure suffering
when the physician acts as the “State’s agent” in prolonging life.
A terminally ill person is faced with the interests of the State and the
medical profession in promoting life. The unacceptability of euthanasia to
society arises mainly from the possibility of error in prognosis, a fear that
physicians could lose their inhibitions and therefore kill others if permitted
to acquiesce to patients’ requests for death, and concern that the doctor’s
agency in death would jeopardize medical ethics and disrupt the trusting
aspect of the professional relationship. These objections are neither grounded
in statistical fact nor empirical reality. Therefore, to compel a suffering per-
son to undergo continued treatment is a violation of fundamental rights
and freedoms, which has not been shown to be based on a reasonable limit
of those rights.
B. Prescribed by Law
The phrase “prescribed by law” indicates that regardless of how rea-
sonable or demonstrably justifiable a limitation of a freedom may be, if it
is not legally sanctioned, it can never be justified under section 1.169
In Re Ontario Film and Video and Ontario Board of Censors, the Di-
visional Court considered this phrase and articulated two requirements which
1671n a cohort-analytic study (N = 306), H. Feifel et a. found support for their contention
that physicians tend to have an above-average fear of death. They reasoned that the practice
of medicine is used to assert mastery over disease and therefore helps control personal death
anxiety: “Physicians Consider Death” in American Psychological Association, ed., Proceedings
of the 75th Annual Convention of the American Psychological Association, vol. 2 (Washington,
D.C.: American Psychological Association, 1967) 201 at 202. Other studies have revealed
similar findings. For further readings see: B.G. Glaser & A. L. Strauss, Awareness of Dying
(Chicago: Aldine, 1965); C.A. Garfield, ed., Psychosocial Care of the Dying Patient (Toronto:
McGraw-Hill, 1978); R.J. Kastenbaum, Death, Society, and Human Experience, 2d ed. (To-
ronto: C.V. Mosby, 1981).
168See, in general, I. Illich, Limits to Medicine (Toronto: McClelland & Stewart, 1976); T.
McKeown, The Role of Medicine: Dream, Mirage, or Nemesis? (New Jersey: Princeton Uni-
versity Press, 1979); C. Dollery, The End of an Age of Optimism: Medical Science in Retrospect
and Prospect (London: Nuffield Provincial Hospitals Trust, 1978).
169 See Hogg, supra, note 13 at 684.
McGILL LAW JOURNAL
[Vol. 32
the limit must meet. 170 Firstly, the law itself had to be ascertainable, un-
derstandable and not totally discretionary. Secondly, the limits had to be
articulated with some precision or they could not be considered as law.
At the outset, it is appealing to argue that subsection 241(b) of the
Criminal Code does not contemplate “prolonging life” in its prohibition of
interference with saving life. Further, section 14 proscribes consent to having
death inflicted on oneself. It is therefore open to contention that infliction
of death is distinguishable from voluntary euthanasia where death naturally
ensues when life sustaining treatment is withdrawn. These positions are
likely to falter, however, as the Criminal Code embodies the presumption
that a person does not wish to die. This is reflected in other provisions like
subsection 197(2)(b), which imposes the duty to provide necessaries of life.
An additional and more problematic duty is found in section 199 where
undertaking an act requires that the act must be done if the omission (or
in this case, discontinuation) would be dangerous to life.
In light of these clearly articulated criminal law provisions which en-
shrine the protection of life, it can be said that the limits on agathanasia
are prescribed by law.
C. Demonstrably Justified in a Free and Democratic Society
This phrase in section 1 recognizes that guaranteed rights may conflict
with legitimate government objectives, which may justify individual rights
being sacrificed to concerns of the collective. In other words, at this stage
the court is required to issue a policy decision upholding a right or a law
which breaches that individual right.171 The reasoning process may involve
consideration of social needs and democratic conditions in other countries.
It is here that the delicate balance may once more tip in favour of the
individual who is dependent on life-support technology. Let us first turn to
the majoritarian perspective, that euthanasia is unacceptable. As has been
discussed, the State opposes the killing of its citizens. The political aspect
of this position was examined by Samek who posited:
The real reason for society’s opposition to euthanasia is not its antagonism to
killing, but its fear of losing the monopoly over killing. If citizens were free to
arrange their own ends, the authority and the prestige of the state might suffer
irreparable harm. In this respect the democratic state has merely taken over
where Church and the King left off.72
On the other hand, other democracies have implemented natural death
legislation, most notably in Australia and some American states. Such leg-
170(1983), 41 O.R. (2d) 583 at 592, 147 D.L.R. (3d) 58, 34 C.R. (3d) 73.
171See Hogg, supra, note 13 at 686.
’72Supra, note 50 at 88 [emphasis added].
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EUTHANASIA AND SELF-DETERMINISM
islation is premised on an acknowledgement of the inviolability of the person
and an appreciation for the moral right to self-determination. These are
values enshrined in Canadian democracy and ones that have long been
judicially protected.
The social needs of terminally ill persons in Canada are not at variance
with those of patients in countries having similar democratic traditions and
the right to passive euthanasia. From a policy perspective, then, it is rea-
sonable that a parallel right should be conferred in Canada, as well.
Conclusions
It is reasonable to propose that a constitutional right to die exists in-
directly under subsection 2(a), and more precariously under sections 7 and
12. Notwithstanding that such a claim conflicts with life-preserving sections
of the Criminal Code, once these rights are established, the role of section
1 is arguably weak. This is attributable in part to the deference given to
religious practice, even if interference with religion would likely extend
someone’s life. In addition, once an act is seen to infringe life, liberty or
security of the person, or is shown to be cruel and unusual, the judiciary
will exercise caution in approving the reasonableness of the infringement.
Medical fallibility in controlling pain, the frailty of the wedge objection and
unrealistic perceptions of the physician-patient relationship contribute to
the unreasonableness of interfering with an individual’s freedom to die,
when the only alternative is endurance of pointless suffering. Although this
interference is prescribed by the criminal law of Canada, it does not cor-
respond to the social policies and democratic traditions of other countries
and thus cannot be demonstrably justified. This is particularly true given
that human integrity and inviolability are central to Canadian democracy.
A terminally ill person who has endured pain, anguish and gradual destruc-
tion of hope for future improvement should not be prevented from ending
a life so devoid of quality. To do so would constitute a violation of integrity
that is repugnant to Canadian traditions.
