EUTHANASIA IN CANADA John Keown MA DPhil PhD DCL Kennedy Institute of Ethics IBC41

Overview 1 Terminology 2 The Law 3 The Ethical Debate 4 Canada: the Carter case 5 Carter: Some Questions

1. Terminology ‘Euthanasia’: the intentional termination of a patient’s life by a physician because it is thought to benefit the patient Active v Passive Voluntary, Non-voluntary, Involuntary Voluntary, active euthanasia (VAE) Physician-assisted suicide (PAS)

2. The Law (i) Internationally (ii) Europe (iii) America Voluntary, active euthanasia (VAE) (homicide) Physician-assisted suicide (PAS) (assisting suicide)

3. The Ethical Debate (i) Autonomy (ii) Beneficence (iii) Equivalence of Intended and Foreseen Life-Shortening (iv) Feasibility of Effective Control: “logical” and “empirical” slopes? (Emily Jackson and John Keown, Debating Euthanasia (Hart,2011))

4 Canada: the Carter case (i) What did it decide? (ii) “We conclude that the prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where (1) the person clearly consents to the termination of life; and (2) the person has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” Carter v Canada 2015 SCC 5 [4]. (iii) evaded the logical “slippery slope” argument (iv) misinterpreted the empirical evidence from abroad

The Canadian Charter of Rights and Freedoms “1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” “7. Everyone has the right to life, liberty and security of the person and the right not be deprived thereof except in accordance with the principles of fundamental justice.”

The Canadian Charter of Rights and Freedoms: s.7 “7. Everyone has the right to life, liberty and security of the person and the right not be deprived thereof except in accordance with the principles of fundamental justice.” “ (i) Life: the ban forces some people to commit suicide; and people can “waive” their right to life (ii) Liberty: protects the right to make fundamental choices free from state interference (iii) Security of the person: the ban causes intolerable suffering See Carter [57]-[70]

The Canadian Charter of Rights and Freedoms Was the blanket ban in accordance with “the principles of fundamental justice” (s.7)? “The direct target of the measure is the narrow goal of preventing vulnerable persons from being induced to commit suicide at a time of weakness”. Carter [78] “The blanket prohibition sweeps conduct into its ambit that is unrelated to the law’s objective.” Carter [86]

The Canadian Charter of Rights and Freedoms: s.1 Was the blanket ban saved by s.1? Was it the “least drastic means” of achieving the legislative objective; could the risks be adequately addressed by safeguards? Carter [103] The trial judge: “My review of the evidence…on the experience in permissive jurisdictions, leads me to conclude that the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.” Carter [105]

5 Carter: Some Questions What did this radical case decide and why? Conflation of intention with foresight? Conflated inviolability of life with “vitalism”? Suicide ethical, assisting suicide ethical? Purpose of ban solely to protect the vulnerable? Adequately answer the “empirical” slope argument? (cf. Fleming [2013]) Adequately answer the “logical” slope argument? John Keown, Euthanasia, Ethics and Public Policy (CUP, 2 nd ed, 2016); (2014) 28(1) Notre Dame J Law E&PP 1