The Rodriguez Case: Sticky Questions and Slippery Answers
Benjamin Freedman”
This comment addresses two issues raised
by the Rodriguez case: the nature of Sue
Rodriguez’s request, and the way in which
society should respond to it. While the Su-
preme Court was as one in seeing the claim
she made as self-regarding, in fact, Ms Rodri-
guez sought not private freedom but public rat-
ification of her decision, and assistance in its
fulfilment. The question of how broadly a right
to suicide must be construed has been opened
by the Court, and therefore, the issue of the
“slippery slope” must be addressed. The Su-
preme Court is clearly unequipped to deal with
that issue, as is clear from the judgments. A
political response is necessary.
Ce commentaire s’intdresse A deux aspects
de l’affaire Rodriguez: ]a nature de la demande
de Sue Rodriguez et la fagon dont ]a soci6t6
devrait y r6pondre. Bien que la Cour supreme
ait reconnu que le probl6me auquel Madame
Rodriguez faisait face ne concemait qu’elle
personnellement, en fait, ce n’dtait pas la
libert6 de prendre sa ddcision en priv6 qu’elle
recherchait, mais bien ]a reconnaissance pu-
blique de son droit de ]a prendre, et la possibi-
lit6 d’obtenir de l’assistance dans son exdcu-
tion. ttant donn6 que la Cour s’est demand~e
jusqu’A quel point la conception du suicide
devait etre 6largie, il faut maintenant s’int6res-
ser au probl~me de ‘effet d’entramement. Or.
il appert que ]a Cour supreme n’est clairement
pas bien quipde pour se questionner sur ce
probl~me. Une r~ponse politique est done
requise.
*PhD. Professor, McGill Centre for Medicine, Ethics and Law; Clinical Ethicist, Sir Mortimer
B. Davis, Jewish General Hospital of Montreal.
McGill Law Journal 1994
Revue de droit de McGill
To be cited as: (1994) 39 McGill L.. 644
Mode de r6fdrence: (1994) 39 R.D. McGill 644
1994]
CASE COMMENTS
Synopsis
Introduction
I.
H.
M. The Slippery Slope: Considering the Social Impact of Approved
The Court’s Question
Sue Rodriguez’s Question
Assisted Suicide and Euthanasia
Introduction
In its decision in Rodriguez v. Canada (A.G.),r the Supreme Court of Can-
ada came within a whisker of transforming Canadian legal and medical practice
regarding euthanasia and assisted suicide. Not only was the margin of decision
as close as could be, but in addition, the majority view pre-
–
sented by Mr. Justice Sopinka conceded nearly all of the building-blocks of
which the dissenters, who favoured Rodriguez’s..legal claim, availed them-
selves.
five to four –
Lost in the judgments, however, are two essential issues raised by the case.
First, what was Sue Rodriguez acfually requesting from the Court –
as opposed
to the issue that the Justices were actually ddciding? Secondehow should society
reason about that actual request? In this brief comment, I will discuss both
issues.
I. The Court’s Question
The answer to any question depends upon the question posed. The Rodri-
guez case is commonly understood to pose the question of the legality of
physician-assisted suicide, or more specifically, the constitutional question of
whether the Canadian criminal prohibition on assisting suicide is contrary to the
Charter2
The State of Michigan, home to Dr. Jack Kevorkian, recently faced the
same question, as the American Civil Liberties Union (“ACLU”) challenged the
constitutionality of a newly-minted law that prohibited physician-assisted sui-
cide. How do we then understand the question posed by the Court in Michigan?
‘[1993] 3 S.C.R. 519, (sub nom. Rodriguez v. British Columbia (A.G.)) 107 D.L.R. (4th) 342
[hereinafter Rodriguez cited to S.C.R.].
2Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule
B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].
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[Vol. 39
Consider the titles of two recent discussions of the Michigan case. Is “the” ques-
tion, as Yale Kamisar, a critic of the court action, argues, “Are Laws against
Assisted Suicide Unconstituitional?”3 Or is it rather, in the words of Robert
Sadler, acting for the ACLU in this case, one of “The Constitution and Has-
tening Inevitable Death”?4 While the ACLU would like to focus attention upon
one kind of case, that of a person in a late stage of terminal illness, its opponents
look to the broader issue of decriminalizing assisted suicide. To a large degree,
the authors are correct in understanding that what stands between them is as
much the question. posed as the answer given. Sadler writes:
The “right question,” as regards the ACLU challenge to Michigan’s ban on
assisted suicide, is not, I would submit, whether there is a constitutional “right to
assisted suicide” or a constitutional “right to die.” Rather the right question,
framed in the context of this particular constitutional challenge, is whether an
absolute ban on the use of physician-prescribed medications by a terminally ill
person to hasten that person’s inevitable death, if and when the person chooses to
do so, is an “undue burden” on the person’s “liberty” interest protected by the
Fourteenth Amendment’s due process clause, and so is unconstitutional. 5
These are the marks of the “slippery slope”: the proponent of a change
seeks to emphasize the limited nature of the question, while the opponent insists
upon analyzing the broader implications of an answer. The identical rhetorical
move can be found in the Rodriguez case. Justice Sopinka saw the case as pos-
ing a broad question, not restricted to the terminally ill. He stated:
The result of the reasons of my colleagues is that all persons who by reason of dis-
ability are unable to commit suicide have a right under the Canadian Charter of
Rights and Freedoms to be free from government interference in procuring the
assistance of others to take their life.6
However, Madam Justice McLachlin insisted, to the contrary, on speaking of
one specific disabled person who happens to be facing inevitable death. She
writes:
Our task was the much more modest one of determining whether, given the leg-
islative scheme regulating suicide which Parliament has put in place, the denial to
Sue Rodriguez of the ability to end her life is arbitrary and hence amounts to a
limit on her security of the person which does not comport with the principles of
fundamental justice.7
As the argument progresses between Justice Sopinka and the dissenting
Justices (primarily Justice McLachlin and Chief Justice Lamer), other tradi-
tional hallmarks of the slippery slop. argument can be discerned. Justice
Sopinka maintained, per contra McLachlin J., that the principles of fundamental
justice must take cognizance of a state interest –
in effect, that the broad social
implications of a decision can help to determine (or undermine) private asser-
tions of right.8 He cited with approval the conclusion of the Law Reform Com-
3(I993) 23:3 Hastings Center Rep. 32.
4(1993) 23:5 Hastings Center Rep. 20.
SIbid. at 20.
6Supra note 1 at 581.
71bid. at 628.
81bid. at 592-93.
19941
CASE COMMENTS
mission of Canada, arguing that in the event of a legal reform permitting eutha-
nasia or physician-assisted suicide, “there is no certainty that abuses can be pre-
vented”;9 and, noting Dutch evidence suggesting that involuntary active eutha-
nasia (which is not permitted by the guidelines) is being practised to an increas-
ing degree, he stated that such a “worrisome trend supports the view that a
relaxation of the absolute prohibition takes us down ‘the slippery slope’ … The
Chief Justice rejected such an argument as a legal matter:
While I share a deep concern over the subtle and overt pressures that may be
brought to bear on such persons if assisted suicide is decriminalized, even in lim-
ited circumstances, I do not think legislation that deprives a disadvantaged group
of the right to equality can be justified solely on such speculative grounds, no mat-
ter how well intentioned. … The truth is that we simply do not and cannot know
the range of implications that allowing some form of assisted suicide will have for
persons with physical disabilities. What we do know and cannot ignore is the
anguish of those in the position of Ms. Rodriguez. 1
Justice McLachlin dealt with the issue similarly, asserting that “Sue Rodri-
guez is asked to bear the burden of the chance that other people in other situ-
ations may act criminally to kill others or improperly sway them to suicide. She
is asked to serve as a scapegoat. 12
There is another unrecognized and more fundamental slippery slope issue
that should have occupied the Court’s attention. That is, how broad are Sue
Rodriguez’s claims, and to what have we committed by accepting them, thereby
repudiating paragraph 241(b) of the Criminal Code? There is a conceptual or
logical, as well as an empirical, version of the slippery slope argument. The Jus-
tices spoke of the empirical slippery slope. If assisted suicide is’permitted under
careful conditions (of free and informed consent and competence, for example),
will society experience abuses as a result of such a reform, for example, with
regard to persons of borderline competence who are brow-beaten into “request-
ing” that their doctors help kill them? The conceptual slippery slope instead
asks, “By accepting the Rodriguez claim – or, what the Justices understood to
be the Rodriguez claim –
to what has society rationally committed itself, under
logical canons of consistency?”
And here, there is troubling consistency within the Court. The case before
them was brought by an individual who was, and remained, capable of suicide,
and whose personal freedom of action was unimpaired by law.3 Her claim was
91bid. at 601.
‘0lbid. at 603.
“Ibid. at 566.
12Ibid. at 621.
‘3This comment does not deal with another fundamental point of consistency amongst the Jus-
tices. They all held in common the view that Parliament had established a “right to suicide” when
it amended the Criminal Code so that attempting suicide was no longer a crime. This is not obvi-
ously true. Kamisar (supra note 3) has noted that by far the more convincing reading of the Amer-
ican legislative history is that suicide was decriminalized in the strict sense – not “legalized”, still
less made the basis of further rights. By withdrawing the crime of attempted suicide from the
books, the legislators were simply acknowledging that no useful purpose could be gained by con-
tinuing to prosecute for this act. None of the Justices in Rodriguez attempted any serious discussion
of the legislative history surrounding the Canadian reform that resulted in the decriminalization of
McGILL LAW JOURNAL
[Vol. 39
not, then, self-regarding. Rather, what she desired was that a new form of coop-
erative action be legalized –
one involving a decision and a “final act” on her
part, and the construction of some suicide device on the part of doctors and oth-
ers (technicians, bioengineers, etc.). The factual nature and background of
Rodriguez’s case, as well as the way in which her request involved not auton-
omy and private action but rather the legally-sanctioned social construction of
death machines, is denied or obscured in all of the judgments. Sopinka J. writes:
To impose medical treatment on one who refuses it constitutes battery, and our
common law has recognized the right to demand that medical treatment which
would extend life be withheld or withdrawn. In my view, these considerations lead
to the’conclusion that the prohibition in s. 241(b) deprives the appellant of auton-
omy over her person and causes her physical pain and psychological stress …
The complaint is that the legislation is over-inclusive because it does not exclude
from the reach of the prohibition those in the situation of the appellant who are
terminally ill, mentally competent, but cannot commit suicide on their own …
The appellant asserts that … to subject her to needless suffering in this man-
ner is to rob her of her dignity.’ 4
The basis of McLachlin J.’s judgment is that the law against assisted sui-
cide denied Rodriguez a right (to commit suicide) that was available to others.
She writes:
It is argued that the denial to Sue Rodriguez of the capacity to treat her body in
a way available to the physically abled is justified because to permit assisted sui-
cide will open the doors, if not floodgates, to the killing of disabled persons who
may not truly consent to death … In short, it does not accord with the principles
of fundamental justice that Sue Rodriguez be disallowed what is available to oth-
ers … It is also argued that Sue Rodriguez must be denied the right to treat her
body as others are permitted to do because the state has an interest in absolutely
forbidding anyone to help end the life of another.15
Other quotes that could be cited are otiose, for at a structural level McLachlin
J.’s argument requires that one accept that Rodriguez is incapable of committing
suicide, and that her co-optation of the legal and medical systems to the end of
managing her death in the manner and at the time that she chooses is a private
exercise of her own self-determination.
The Chief Justice’s account was somewhat more careful and precise. He
described his conclusion as follows:
This provision [subsection 241(b)] has a discriminatory effect on persons who are
or will become incapable of committing suicide themselves, even assuming that
all the usual means are available to them, because due to an irrelevant personal
characteristic such persons are subject to limitations on their ability to take funda-
mental decisions regarding their lives and persons that are not imposed on other
members of Canadian society.’ 6
attempted suicide. I ain skeptical that Parliament, in decriminalizing attempted suicide, contem-
plated the reconstruction of this decision, an acknowledgment of the limits of legal effectiveness,
into a fertile source of further rights. I further believe that the burden was upon the Justices to dem-
onstrate to the contrary; however, I will not pursue this issue further here.
14Supra note I at 588-92.
Islbid at 620-23.
161bid. at 557.
19941
CASE COMMENTS
Structurally, since Lamer C.J. relied upon a claim of equality rights, he too was
committed to arguing that the right to commit suicide in private without others
interfering is equivalent to the right to arrange one’s death with the assistance
of medical personnel and with the knowledge and approval of the Canadian
judiciary. The Chief Justice, however, recognized that this case did not concern
one who was at the time incapable of committing suicide. Through some curi-
ous language (“all the usual means”), he indicated, as well, his awareness that
the topic of the appeal was itself peculiar. Exactly how peculiar the question
posed by Sue Rodriguez was will, however, require some exploration.
II. Sue Rodriguez’s Question
Sue Rodriguez suffered from a motor neuron disease, amyotrophic lateral
sclerosis (“ALS”), that progressively destroys the body’s capacity for move-
ment. The degeneration associated with ALS can proceed at varying rates, but
generally the diagnosis is established years before the patient has approached a
terminal phase.
I have met, as a consulting clinical ethicist, with a number of persons with
ALS. A common and natural preoccupation of these discussions is not the pres-
ent, but rather the future: not current choices, but what shall happen if and when.
Of course, responses vary from patient to patient, as well as over time in the
same patient. Some patients will, in discussion, fix upon some major hallmark
event of the disease’s advance (generally, permanent loss of the capacity for
independent breathing) as being the point at which they wish to be kept com-
fortable rather than have their existence prolonged. There is, of course, another
option. When told the diagnosis of ALS, the typical patient has the physical
capacity to exercise the full range of suicidal acts. The range diminishes over
time, and increasing assistance is required over time. For example, can the
patient still get to the drugstore? If not, delivery of the drug is needed. Can the
patient still open the bottle? Can he or she swallow the pills?
Some, of course, fight to the end: I vividly recall consultations regarding
one patient who had in advance given her doctors carte blanche to attempt any
experimental or nonvalidated treatment that might prolong her life in any way.
The tragedy the health care staff faced in her case was that ultimately all capa-
city for motion is irretrievably lost, and with it, all prospect for communication.
This woman, artificially ventilated for the duration of her last hospital admis-
sion, had begun by writing notes, and progressed to mouthing her statements
(with husband and nurses attempting to lip-read). For a period of time she could
communicate by eye-blink; she soon was unable to do even that, though for a
brief time thereafter she could slightly widen her eyes in response to questions.
ALS does not damage the intellect, however. This muted patient’s aware-
ness of her situation was evident daily. When told that the nurse had to suction
,,,., S0011, a.
thUs patient’s eyes would fill, allow-
ing gravity to express her grief. This is the macabre progression Ms Rodriguez
faced, providing the backdrop against which her lawsuit seeking the right to
assisted suicide must be understood.
C,
un
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[Vol. 39
There are a number of common ways in which people end their lives.
People shoot themselves with guns, slit their wrists, jump from tall buildings,
take poison or asphyxiate themselves. Some people do not care how they die,
while others, for a variety of reasons, favour or insist upon a particular form of
suicide. The choice of suicide method varies, as well, from culture to culture.
Many, if not most, suicide methods used in Canada assume some degree
of cooperation, often unwitting, of others. Without gun manufacturers and dis-
tributors, nobody could choose to commit suicide by gunshot; without archi-
tects, nobody could leap from a skyscraper. Yet we do not consider these to be
cases of assisted suicide. We do not prosecute the architect or gundealer for his
role in such deaths, in spite of the fact that assisting suicide remains a criminal
act in Canada. The factors which can come into play in determining that X
assisted Y’s suicide –
the proximity of X’s action to that of Y; X’s knowledge
of Y’s situation and intention; X’s own intention –
rely upon socially condi-
tioned judgments which are not themselves always clear. For example, one eth-
ics consultation of mine began with a cancer patient’s request for the phone
number of the Hemlock Society, a group that furnishes information about sui-
cide methods. Would the nurse whom he had asked have been assisting his sui-
cide by giving him the phone number? By giving him a phone book? By telling
him that there are phone books downstairs?
Sue Rodriguez had chosen to manage her dying process by killing herself,
but she did not approach the Court to seek that right, since suicide had been
legalized (or more precisely, decriminalized) decades before. At the time of the
initiation of this litigation, and for a long time thereafter, Sue Rodriguez
retained the capacity to kill herself, for example, by poisoning, though her debil-
ity had foreclosed other options. Yet as long as she retained this degree of capa-
city, she found life worth living and chose not to exercise her suicide option.
Her specific desire was to have the assistance of a physician in installing a self-
activated device which she could actuate at a time of her own choosing. I have
seen no description of what specific device was contemplated. Would it require
a motion of the finger? Would it be activated by eyeblink? By eyeball motion?
Current technology permits any such arrangement, given sufficient ingenuity.
Sue Rodriguez wanted to kill herself, at a time of her choosing, in a manner
of her choosing. She claimed this as a matter of right and the Justices seem to
have all agreed with her on this crucial point: it is unjust to allow an able-bodied
person to kill himself or herself and to deny a handicapped person assistance to
achieve the same end. But the Justices all erred in finding equivalency between
a private right to kill oneself, which only calls upon others not to interfere, thus
literally asks them to do nothing, and the right Sue Rodriguez sought: the right
to publicly ratify, in court, a new form of cooperative action bent upon inducing
a certain person’s death, at a certain time, and in a certain way. Moreover, this
confusion of private and public realms implicates a further uncomfortable issue.
A right has been established on behalf of persons who, by their handicap, are
unable to kill themselves in a desired way, to seek whatever death-assistance is
appropriate and receive judicial ratification thereof.
1994]
CASE COMMENTS
Imagine that an obese person wants to plunge to his death from Mount
Everest. He knows of a mountaineer who would help him to do so. This moun-
taineer is prepared to act in spite of protests from the CMA (Canadian Moun-
taineering Association) that it is not the purpose of mountaineering to help cli-
ents engineer their deaths. However, the mountaineer will not perform this feat
of assisting suicide unless the Supreme .Court of Canada says this would not be
a criminal act. Does it follow from the Rodriguez dissents that such a claim
would succeed? Because of the argument the Chief Justice employed, just such
an absurd conclusion does indeed seem to follow from his decision. Chief Jus-
tice Lamer explicitly stated:
I prefer not to express any opinion on the position of persons suffering from less
serious disabilities, whose physical condition may certainly complicate access to
the usual means of committing suicide, but who if those means were available to
them would be capable of doing so. I am not required to express any opinion on
this situation and I prefer not to do so, in the absence of information to indicate
that, as regards access to methods of suicide, persons with disabilities are in a rad-
ically different situation from the rest of the public.17
The last sentence seems to me to be disingenuous. If the Chief Justice
lacked information on the fact that disabled persons do not have access to meth-
ods of suicide, such information is easily supplied. Beside the case of the
rotund, noted above, we may include the lame (who need to be driven to the
bridge from which they want to leap), the blind (who have no driver’s license
and thus cannot engineer a fatal car accident), paraplegics (who are unable to
inflict gunshot wounds), and the socially disadvantaged (ex-cons unable to buy
firearms). The statement is doubly disingenuous because the Chief Justice had
already expressed his opinion, in the affirmative, on this question. He and the
other dissenting Justices stated that a handicapped person’s rights are violated
by being legally denied assistance to kill himself or herself in the same way that
any other Canadian might choose. That is exactly the right they affirmed on
behalf of Sue Rodriguez.
The questions remain: If a person has a right to commit suicide,'” how
broadly should such a right be construed? Should it be allowed to include both
the negative right of non-interference and the positive right to seek assistance
(or perhaps even to have assistance provided); both quiescent acceptance and
explicit judicial approval; both private action and public cooperation? What do
we as a society mean by a right to suicide, and what consequences are we pre-
pared to bear on behalf of that right? These are all questions of the slippery
slope. As noted above, they were relied upon by Justice Sopinka in upholding
the constitutionality of paragraph 241(b) and were rejected in the dissents. Note,
however, that these arguments were not refuted by the dissenters, not disproven,
not even empirically disputed, but rejected as a matter of legal relevance to a
constitutional determination. In the next section I will illustrate that on this point
the dissent is right. These questions of the slippery slope, that lie at the heart of
17Ibid. at 551-52.
8’This is a view I do not personally believe has been established but have granted arguendo. See
supra note 13 and accompanying text.
McGILL LAW JOURNAL
[Vol. 39
any dispute over assisted suicide, cannot be adequately addressed in any court
other than one of public opinion.
M. The Slippery Slope: Considering the Social Impact of Approved
Assisted Suicide and Euthanasia
In my understanding, rather than a single argument, the slippery slope
reflects a complex of considerations regarding normative (legal, ethical or beha-
vioural) social changes. How broadly were they intended at their initiation?
How broadly will they be construed thereafter? What unintended, deleterious,
ineluctable effects are they likely to have over time? Arguments from within
this complex are cautionary, rather than apodictically certain, and are grounded
in generalizations from numerous historical, psychological, sociological and
biological observations. 9
What specific slippery slope cautions might have been raised in the event
that the Rodriguez case had been decided in her favour? Brock has argued con-
vincingly that no important logical or ethical difference stands between
physician-assisted suicide and euthanasia; legalizing one should logically entail
legalizing the other.2″ Why the two might be thought equivalent is easily seen
in reference to the Rodriguez request. Using complicated technology, involving
the collaboration of physicians and technical personnel, she could have installed
a machine that would have provided her with a lethal injection after a coded
eye-blink; or, we could eliminate the middle-man (middle-machine) and have
the physician perform the injection upon the same signal. With the near infinite
flexibility of computer-driven machinery, it matters little whether a command is
given to a person or a machine programmed by that person.
19 [N]ormative behavior –
accepting norms, or acting in accordance with expressed or
unexpressed norms –
has consequences and develops its own momentum. Because
there are limits to human predictive capacity and rationality, the congeries of slippery-
slope arguments serve, not as a conclusive basis for rejecting change, but as a warning
flag concerning the possible effects of change. Slippery-slope arguments are not apo-
dictic, conclusively true, but rather more or less well grounded; and are always one
among the many arguments that will need to be mounted concerning any given norma-
tive choice A (whether A be a policy or an action –
the acceptance of a norm or action
in accordance with a norm) by an individual, group, or society.
Slippery-slope arguments are comprised of or bolstered by numerous observations
and generalizations. Socially, we note evidence of and experiments upon conformity
and the effect of social pressure upon individual moral judgments; we note the phenom-
enon of immigrants, coming to a new land with their independent values, assimilating
to the host culture. Biologically, we note phenomena such as desensitization: the orga-
nism adjusting its own reactions to accommodate its environment. We note further how
this may form a positive feedback loop, since the organism’s environment is partly self-
generated. Psychologically, we note the phenomenon of cognitive dissonance and the
normal reaction it evokes: discrepancies between a person’s behavior and his or her
beliefs are as likely to result in an alteration of belief as in a reform of behavior. His-
torically, in retrospectively examining regimes of horror and human degradation, we
note that there were early, small, incremental steps taken by members and institutions
of society that permitted the later holocaust to nakedly proceed (B. Freedman, “The
Slippery-Slope Argument Reconstructed: Response to van der Burg” (1992) 3:4 J.
Clinical Ethics 293 at 296-97).
2D. Brock, “Voluntary Active Euthanasia” (1992) 22:2 Hastings Center Rep. 10.
1994]
CASE COMMENTS
Nevertheless, rejecting Rodriguez’s request, Sopinka J. disagreed by
asserting that there remains a difference of agency between assisted suicide and
euthanasia.2 This fine difference between a person fulfilling a command and
a person fabricating a device to fulfil the same command did not, however,
trouble the dissenting Justices in Rodriguez, who were more inclined to concen-
trate upon the end rather than on its means; it is their views that must control
our inquiry into the meaning that would have attached to upholding Rodriguez’s
claim. McLachlin J. writes:
If the justification for helping someone to end life is established, I cannot accept
that it matters whether the act is “passive” –
the withdrawal of support necessary
to sustain life –
the provision of a means to permit a person of
sound mind to choose to end his or her life with dignity.22
The Chief Justice went one step further in recognizing the equivalency of
or “active” –
the two:
One of McEachem C.J.’s conditions is that the act of terminating the appellant’s
life be hers and not anyone else’s. While I believe this to be appropriate in her cur-
rent circumstances as a mechanism can be put in place allowing her to cause her
own death with her limited physical capabilities, why should she be prevented the
option of choosing suicide should her physical condition degenerate to the point
where she is no longer even physically able to press a button or blow into a tube?
Surely it is in such circumstances that assistance is required most. Given that Ms.
Rodriguez has not requested such an order, however, I need not decide the issue
at this time. Therefore, I prefer to leave it to be resolved at a later date.P
There can be, I think, no doubt as to how the Chief Justice will resolve the
issue at that time. In Justice Cory’s concurring dissent, his assertion of equiva-
lency is clear as well. He could see no reason for distinguishing between choos-
ing death by refusing life support equipment and choosing to “put an end to her
life through the intermediary of another.”24 This, then, is the first slippery slope
consequence: in spite of the fact that Rodriguez’s case was framed and under-
stood as an issue of physician-assisted suicide, had the dissent succeeded,
physician-assisted euthanasia would quickly have followed.
There are a number of other slippery slope concerns, potentially conse-
quent upon legalization of physician-assisted suicide. Yale Kamisar has noted
studies concerning the inordinate toll that suicide takes on the young, particu-
larly adolescents, and upon the mentally ill.’ Very recent evidence confirms the
fear that heightened social visibility concerning death-dealing volitional acts of
the terminally ill leads to increased suicide of the mentally infirm. In an article
entitled “Increase in Suicide by Asphyxiation in New York City after the Pub-
lication of Final Exit”,26 Peter Marzuk describes screening the records of all
local suicides before and following the appearance of this best-selling suicide
is intrinsically morally and legally wrong …” (supra note 1 at 601).
2 Justice Sopinka writes that “the active participation by one individual in the death of another
22Ibid. at 624.
‘Ibid. at 578-79.
241bid. at 631.
25Supra note 3 at 38ff and references cited therein.
26(1993) 329:20 New England J. Med. 1508.
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(Vol. 39
manual intended for use by the terminally ill. The book’s recommended method
of suicide, asphyxiation, was the cause of death in eight cases in the year pre-
ceding, and thirty-three cases in the year following the book’s publication. In
nine of those thirty-three cases, the book was found at the scene of the suicide.
In a further six cases of suicide by poisoning, solid evidence of use of this book
was also present. Of those fifteen cases, six had no evidence of physical illness
and at least five had histories of psychiatric illness. The author concludes, “To
many, euthanasia is distinct from suicide. We believe the line between the two
is being blurred in the eyes of the public. Efforts to destigmatize euthanasia or
even encourage it for some groups may have the untoward effect of promoting
suicide in other groups
McLachlin J.’s dissent was restricted in scope to the terminally ill; the
Chief Justice questioned such a restriction. In any event, the definition of “ter-
minal illness” is an elastic matter, given to slippery slopes of its own. For ex-
ample, last year’s Washington State initiative to legalize “physician aid-in-
dying” (assisted suicide and euthanasia) was to be restricted to the terminally ill.
However, “1-119 would have expanded the state’s definition of ‘terminal condi-
tion’ to include patients with as long as six months to live and also those who
were not actually about to die, but in irreversible comas or persistent vegetative
states.”‘
All of the dissenting judgments expressed concern about the possibility
that illegitimate pressure to accede to suicide might be brought to bear. How-
ever, they failed to account for the fact that what actually counts as “illegiti-
mate” pressure changes over time, as society becomes more accustomed to con-
sidering a willed death as a legitimate option. This slippery slope phenomenon
is already evident in the Netherlands. John Keown describes a conversation with
Dr. Herbert Cohen:
One of Holland’s leading practitioners of euthanasia told me that he would be put
in a very difficult situation if a patient told him that he really felt a nuisance to his
relatives because they wanted to enjoy his estate. Asked if he would rule out
euthanasia in such a case, he replied: “I … think in the end I wouldn’t because that
kind of influence –
is the same kind
of power from the past that … shaped us all. The same thing goes for religion …
education … the kind of family he was raised in, all kinds of influences from the
past that we can’t put aside. ‘ 29
these children wanting the money now –
Similar arguments can be made with respect to two other conditions stated
by the dissenting Justices: that the request for euthanasia or assisted suicide be
firm and unwavering, and that it be provided by a fully informed person of
undoubted competence. These conditions are not self-interpreting. They are,
moreover, in large degree, social constructions, often understood as relative to
accepted or expected choices. What the slippery slope reminds us is that social
expectations change over time, under pressure of the previous choice. At pres-
ent, for example, asking to be killed is an odd choice and might trigger search-
27Ibid. at 1510.
28R. Carson, “Washington’s 1-119″ (1992) 22:2 Hastings Center Rep. 7 at 8.
29″On Regulating Death” (1992) 22:2 Hastings Center Rep. 39 at 41-42.
1994]
CASE COMMENTS
ing questions about competence. Over time, however, this rigour might well
give way. It is not hard to envision a time when quite the reverse obtains, when
an ill person who fails to ask to be killed is judged to be “in denial”, and for
that reason in need of therapy.
The same holds concerning the unwavering nature of the choice, some-
thing that is inevitably judged relative to the social acceptance of the choice in
question. In this regard, it is interesting to compare one case of ambivalent
euthanasia with a recent Supreme Court of Canada decision concerning ambiv-
alent consent to medical treatment. The euthanasia case unfolded as follows:
In February, KeVorkian assisted in the suicide of Hugh Gale, 70, an emphysema
patient who may, at the last minute, have changed his mind. According to one ver-
sion of the report that Kevorkian wrote, about 45 seconds after putting on the
carbon-monoxide mask, Gale became flushed, agitated, saying “Take it off!” The
mask was immediately replaced with oxygen, which helped calm him down. “The
patient wanted to continue,” the report states. “After about 20 minutes, with nasal
oxygen continuing, the mask was replaced over his nose and mouth, and he again
pulled the clip off the crimped tubing. In about 30 to 35 seconds he again flushed,
became agitated with moderate hyperpnea [rapid or deep breathing]; and immedi-
ately after saying ‘Take it off!’ once again, he fell into unconsciousness. The mask
was then. left in place … Heartbeat was undetectable about 3 minutes after last
breath. 30
This would not, at this time, satisfy the requirement that a request be unwa-
vering; but would it not do so shortly after such requests became a commonly-
accepted part of medical practice? Compare this situation with the Supreme
Court of Canada decision regarding consent to medical treatment.3 1 During an
angiogram, the appellant, Mrs. Ciarlariello, began to spasm. After calming her-
self she said, “Enough, no more, stop the test.” Her neurologist assessed her and
assured her that five more minutes were required. The patient responded,
“Please go ahead.” The Court’s opinion was that this consent was acceptable.
The juxtaposition of these two cases should, I think, be suggestive, for the
consent provided by Mrs. Ciarlariello to her angiogram was no less ambivalent
than that of Mr. Gale to euthanasia. At this moment, we are (rightly) outraged
at the thought that a patient who has second thoughts might be put to death.
Why? Because euthanasia is different from medical treatment. Yet if the dissent-
ing Justices had their way, euthanasia would end up being seen by society as a
form of medical treatment. At that point, the insistence that consent to euthana-
sia be firm and unwavering would dissolve, for, as Mrs. Ciarlariello’s case dem-
onstrates, the law will not insist upon such conditions for consent to medical
treatment.
A great many other slippery slope considerations could be adduced. For
my part, I do not propose that those discussed in this comment are decisive, but
simply maintain that they must be considered. One who would discuss the kinds
of normative changes that follow from the dissenting views in Rodriguez must,
i think, admit their reievance; this is precisely what the argument is about. Yet
30N. Gibbs, “Death Giving” [Canadian] Time (31 May 1993) 44 at 48.
3’Ciarlariello v. Schacter, [1993] 2 S.C.R. 119, 100 D.L.R. (4th) 609.
McGILL LAW JOURNAL
[Vol. 39
I believe the dissenters were correct in excluding these slippery slope concerns
from their constitutional deliberations.
As Charter jurisprudence is constructed, once an infringement of a right
has been demonstrated, the burden of proof is upon the State to demonstrate that
the infringement has been legally “saved” under section 1, because the law in
question is demonstrably justified in a free and democratic society. Can slippery
slope arguments serve this role in judicial deliberations? Clearly not. First,
courts are unequipped to gather, assess and weigh the complicated empirical
evidence that needs to be brought to bear in such a discussion, as was evident
in both Justice Sopinka’s opinion and in the dissenting judgments. But there is
a deeper, far more fundamental reason. Properly understood, slippery slope
arguments cannot satisfy this requirement. They are cautionary in nature, pro-
viding reasons to pause, to reconsider, to temporize and to carefully weigh, but
by their nature, they are not knock-down, conclusory points. A slippery slope
consideration is, by definition, speculative, and so it cannot play the role of sat-
isfying the burden of proof required. And yet –
and the point must be repeated
–
it is agreed on all sides that slippery slope concerns are at the centre of any
decision regarding change in the laws respecting euthanasia and assisted sui-
cide.
What can be done to escape this jurisprudential dilemma? I believe the
solution is simple. It is the solution proposed by Mr. Justice Sopinka, who had
reached the right conclusion, albeit for the wrong reasons. The debate must pro-
ceed in the public arena, in particular, through the political process. In regard
to those views in which no answer is provably right or wrong, in which exper-
tise falls to reliably help, democracies rely upon one procedure: discuss, debate,
propagandize –
and then, vote.
There are a number of ancillary reasons I could provide to demonstrate
why it is preferable that this issue be resolved in the political rather than in the
judicial arena. For example, only in that way are interested parties given the
time and opportunity to mobilize the resources needed to clarify the baffling
factual questions raised. Above all, the unfortunate precedent of the abortion
debate, in both Canada and the United States, should have served to teach all
sides that a pre-emptive judicial resolution can leave a nation decades later with
a festering moral wound damaging the body politic. This experience compares
unfavourably with that of many European nations which achieved political,
rather than judicial, closure on the abortion debate.
I would not, though, rest upon such counsels alone. How far along the path
for whom, with what safeguards, under what circumstances –
to euthanasia –
is society prepared to walk? The Justices, particularly Justice Sopinka, gave
their own estimates of this, but rather than estimate, it is far better to pose the
question directly to society. What cost, in the form of abuse, is likely to accom-
pany this path, and is the gain worth the price? These questions are at the heart
of the debate. and a democratic nation has only one means of addressing them.
