Dying Justice

Dying Justice: A Case for Decriminalizing Euthanasia and Assisted Suicide in Canada

JOCELYN DOWNIE
Copyright Date: 2004
Pages: 250
https://www.jstor.org/stable/10.3138/9781442674141
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  • Book Info
    Dying Justice
    Book Description:

    The legal status of assisted death in Canada is in urgent need of clarification and reform. If this is to take place, however, the process must be informed by a careful, thorough, and thoughtful analysis of the issues. InDying Justice, Jocelyn Downie provides an up-to-date and comprehensive review of significant developments in the current legal status of assisted death in Canada. She then recasts the framework for analysis in terms of the nature of the decision for assisted death. Refusals of treatment and requests for assisted suicide and euthanasia, the author believes, should be respected if they are made voluntarily by informed and mentally competent individuals.

    No one has yet proposed a regime for Canada that is both less restrictive than the status quo with respect to assisted suicide and euthanasia and more restrictive with respect to the withholding and withdrawal of potentially life-sustaining treatment. On the basis of a thorough review of all of the major arguments made against permitting assisted suicide and euthanasia, Downie's regime permits some assisted suicide and euthanasia, but also sets out and insists upon a test that must be met before refusals of treatment would be respected.

    eISBN: 978-1-4426-7414-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-2)
  4. Introduction
    (pp. 3-12)

    The legal status of assisted death in Canada requires clarification and reform. Consider first the need for clarification. The absence of a clear legislative or judicial statement on withholding and withdrawing potentially life-sustaining treatment and providing for potentially lifeshortening palliative treatment is causing at least six serious harms.¹ First, under the current system, some people are getting unwanted treatment because their health care providers do not know whether they will violate theCriminal Codeif they do not do everything in their power to sustain life.²

    Second, patients across the country, even within a single hospital, are getting significantly different...

  5. Part One: What the Law Is

    • CHAPTER ONE The Withholding and Withdrawal of Potentially Life-Sustaining Treatment from Competent Persons
      (pp. 15-28)

      When assessing the legal status of withholding and withdrawing treatment from competent persons, one must consider two relevant categories of persons: competent adults and mature minors. Before turning to these two categories, however, consider theCriminal Code¹ backdrop against which the entire discussion of the legal status of the withholding and withdrawal of potentially life-shortening treatment takes place.

      At first glance,the Criminal Codeappears to preclude respecting an individual’s refusal of potentially life-sustaining treatment. The section titled ‘Duties Tending to Preservation of Life’ contains the following provisions:

      215(1) Every one is under a legal duty ...

      (c) to provide...

    • CHAPTER TWO The Provision of Potentially Life-Shortening Palliative Treatment
      (pp. 29-32)

      The following sections appear in theCriminal Codeof Canada.

      219(1) Every one is criminally negligent who

      (a)in doing anything,or

      (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons [emphasis added].

      220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

      (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment for a term of four years; and

      (b) in...

    • CHAPTER THREE Assisted Suicide
      (pp. 33-36)

      Assisted suicide is quite clearly prohibited by the CanadianCriminal Code.The Criminal Codeprovides:

      241 Every one who

      (a) counsels a person to commit suicide, or

      (b) aids or abets a person to commit suicide,

      whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

      Three significant cases in Canada involve assisted suicide.¹ In the first, section 241 (b) withstood aCharterchallenge. In the second, an individual was convicted for the first time under section 241 (b). In the third, a physician was charged for the...

    • CHAPTER FOUR Euthanasia
      (pp. 37-44)

      Euthanasia, like assisted suicide, is quite clearly illegal in Canada. The homicide provisions of theCriminal Codeprohibit it.

      229 Culpable homicide is murder

      (a) where the person who causes the death of a human being

      (i) means to cause his death, or

      (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

      231(1) Murder is first degree murder or second degree murder.

      (2) Murder is first degree murder when it is planned and deliberate ...

      (7) All murder that is not first degree murder is...

  6. PART TWO: What the Law Should be for the Voluntary Withholding and Withdrawal of Potentially Life-Sustaining Treatment

    • OVERVIEW
      (pp. 45-48)

      In this part, I begin to explore what the lawshouldbe. As mentioned earlier, for the purposes of this book ‘should be’ means ‘should be in order to be consistent with the core values and values hierarchy of the Canadian legal system.’ I therefore seek to answer the question of what the law should be on the legal system’s own terms. That is, I do not make moral statements about what the law should be but rather, statements of what, given the overarching legal regime within which the law will reside, the law should be.

      In this part, I...

    • CHAPTER FIVE The Values
      (pp. 49-61)

      The values discussed in this chapter are autonomy, dignity, and life. These three values are the most frequently raised in discussions of assisted death and they are the most relevant to a determination of what the law should be with respect to assisted death. Two other values (protection of the vulnerable and equality) mightprima facieappear relevant but are not discussed as values in this section. Protection of the vulnerable is not considered as a separate value because I believe that it should be considered as a means of protecting the values of autonomy, dignity, and life rather than...

    • CHAPTER SIX Resolution of Conflicts among Values
      (pp. 62-68)

      Conflict may arise whenever there is more than one person and/or more than one fundamental value involved; we must ask how the legal system resolves such conflicts.¹ Two kinds of conflict should concern us here: internal and external conflict. Internal conflict arises when two or more values are in conflict with respect to one individual. For example, to respect a person’s autonomous wish to have treatment withdrawn can mean that the life of that person will not be preserved.

      External conflict arises when the same value applies to more than one person and cannot be realized for all, or when...

    • CHAPTER SEVEN A Legal Regime for the Withholding and Withdrawal of Potentially Life-Sustaining Treatment from Competent Individuals
      (pp. 69-86)

      I will begin presenting the first part of my alternative approach to the regulation of voluntary assisted death for competent individuals in Canada by exploring what, on the basis of the values and the approach taken to the resolution of conflicts among values previously discussed, the legal regime with respect to voluntary withholding and withdrawal of potentially life-sustaining treatment from competent individuals should be. Given that, as argued in the previous chapter, an autonomous refusal of potentially life-sustaining treatment should be respected, what should the legal regime be?

      First, I will argue that, given the core values and the approach...

  7. Part Three: What the Law Should Be for Assisted Suicide and Voluntary Euthanasia

    • OVERVIEW
      (pp. 87-88)

      In this part, I argue for the decriminalization of assisted suicide and voluntary euthanasia in Canada. First, I argue that the distinctions commonly drawn in attempts to distinguish between the withholding and withdrawal of potentially life-sustaining treatment, on the one hand, and assisted suicide and euthanasia, on the other, are not sustainable distinctions. The distinctions considered here relate to the nature of the conduct (act vs omission), the cause of death (unnatural vs natural), the probability of death (certain vs possible), the intention (to end life vs to alleviate suffering), and the nature of the effect of the prohibition (violation...

    • CHAPTER EIGHT Unsustainable Distinctions
      (pp. 89-95)

      The acts/omissions distinction argument generally takes the following form: (1) to omit to save a life is acceptable whereas to act to end life is unacceptable; (2) the withholding and withdrawal of potentially lifesustaining treatment are omissions, but assisted suicide and euthanasia are acts; (3) therefore, the withholding and withdrawal of potentially life-sustaining treatment are acceptable but assisted suicide and voluntary euthanasia are not.²

      There are at least two bases on which to lay a claim that the distinction between acts and omissions is not a sustainable distinction upon which to ground public policy with respect to assisted death. First,...

    • CHAPTER NINE Inconsistencies across Categories of Assisted Death
      (pp. 96-99)

      The concern most frequently expressed with respect to freedom and assisted death is that individuals may not always be acting voluntarily when they make requests for assisted death.¹ Some argue that many individuals will see themselves as a burden on their loved ones or on society in general and they may feel pressured into choosing an earlier death. Others may be vulnerable to financial or other sorts of pressures that virtually coerce them into consenting to assisted death. Such circumstances, some conclude, suggest that these requests for assisted death are not fully free.

      At least three sorts of limits on...

    • CHAPTER TEN Invalid Arguments
      (pp. 100-105)

      Sanctity of life arguments can be divided into two categories: religious and secular. The religious arguments tend to be based on the view that life is sacred and on divine commandments (e.g., in Christianity, the Sixth Commandment, ‘Thou shalt not kill’). The secular arguments tend to be based on deontological arguments positing a rule: Do not kill. This rule can be derived from a moral theory such as that of Immanuel Kant.¹ The secular arguments are also frequently grounded in the following argument: the principle that ‘killing is wrong’ is widely recognized as a foundational principle in our society; euthanasia...

    • CHAPTER ELEVEN Slippery Slope Arguments
      (pp. 106-132)

      The slippery slope argument is commonly expressed in the following terms. If society allows assisted suicide and voluntary euthanasia, then there will be a slide towards the bottom of a slippery slope and many clearly unacceptable practices will become prevalent.¹ For example, it is feared that we will soon find ourselves unable to prevent involuntary euthanasia of the elderly, the disabled, and other vulnerable individuals.² Once it is accepted that one particular life is not worth living and can be deliberately terminated, then there will be no good (or persuasive) reason to claim that the lives of the disabled, the...

    • CHAPTER TWELVE The Canadian Charter of Rights and Freedoms
      (pp. 133-144)

      In this final chapter, I argue that a legislative regime that permits attempted suicide and the withholding and withdrawal of potentially life-sustaining treatment but prohibits assisted suicide and voluntary euthanasia is unconstitutional, that is, it is in breach of sections 7 and 15 of theCharterand cannot be saved by section I.¹ To make this argument, I must challenge the reasoning and result of Justice Sopinka’s majority decision inRodriguezv.British Columbia (Attorney General)² and develop the reasoning and embrace the result in the dissenting opinions of former Chief Justice Lamer and Justice McLachlin (as she then was)...

  8. APPENDIX: Active Euthanasia and Assisted Suicide Crown Counsel Policy Manual, Province of British Columbia
    (pp. 145-152)
  9. Notes
    (pp. 153-192)
  10. Index
    (pp. 193-201)