The Special Senate Committee on Euthanasia and Assisted Suicide

Of Life and Death - Final Report

June 1995


Appendix D

Chronology of Major Canadian Developments and Events

1972

Canadian Parliament abolished the offences of suicide and attempted suicide.

November 1983

Under the direction of Dr. Nachum Gal (a pediatrician at the University of Alberta Hospital), nurse Barbara Howell injected a lethal dose of morphine into a severely brain-damaged infant who had been removed from life-support. Dr. Gal fled to Israel. The government of Alberta unsuccessfully sought the extradition from Israel of Dr. Gal to face murder charges. The Alberta Association of Registered Nurses suspended Barbara Howell for one year and her supervisor for four months.

July 1983

The Law Reform Commission of Canada released its Report on Euthanasia, Aiding Suicide and Cessation of Treatment. This report recommended against legalizing or decriminalizing voluntary active euthanasia and aiding suicide. It also recommended that the Criminal Code be amended so as not to require a physician to undertake or continue to administer medical treatment where the treatment is against the wishes of the person or where the treatment has become therapeutically useless and is not in the best interests of the person. Finally, it recommended that the Criminal Code be amended so as not to prevent a physician from undertaking, or to oblige a physician to cease administering, appropriate palliative care intended to eliminate or to relieve the suffering of a person for the sole reason that such care is likely to shorten the life expectancy of that person.

1984

A Joint Statement on Terminal Illness was issued by the Canadian Nursing Association, the Canadian Medical Association, the Canadian Hospital Association in co-operation with the Canadian Bar Association and with advice from the Catholic Health Association of Canada and the Law Reform Commission. The statement established a procedure for Do Not Resuscitate (DNR) orders.

June 1987

The Law Reform Commission of Canada released proposals for amending the Criminal Code. These included the recommendation that mercy killing be treated as second-degree murder rather than as first-degree. This second-degree murder would carry no fixed or minimum jail term. The proposals also included the recommendation that individuals who provide palliative care which shortens life should not be subject to penalty under the Criminal Code.

1989

The Report of the Subcommittee on Institutional Program Guidelines, Guidelines for Establishing Standards, Palliative-Care Services was released.

1990

In an interview, Dr. Perry (an NDP MLA) admitted to giving morphine injections to his father who was dying of cancer and admitted that these injections may have hastened his death. The B.C. College of Physicians and Surgeons stated that Dr. Perry simply provided his father with quality palliative care and did nothing wrong since treatment that may coincidentally hasten death is neither illegal or unethical.

1990

In Malette v. Shulman, the Ontario Court of Appeal upheld the right of a Jehovah's Witness to refuse life-saving blood transfusions and the principle that health care professionals have a duty to respect such a refusal. Further, it upheld the right to refuse (and the duty to respect the refusal of) such transfusions through an advance directive.

July 4, 1990

In an interview with the Canadian Press, a Vancouver psychologist, David Lewis, publicly admitted to assisting personally in the suicides of eight persons with AIDS. An AIDS patient himself, Lewis later had an assisted death through an overdose of prescription drugs.

1991

Health and Welfare Canada and the Canadian Cancer Society released a report entitled "Cancer 2000" a national review of all aspects of cancer. This report made strong recommendations about the development of: regional palliative care centers; a compulsory curriculum for all health care professionals; a specialty in palliative care in both nursing and medicine; and divisions of palliative oncology in every regional cancer centre. It also called on the National Cancer Institute of Canada to end its neglect of the field of palliative care and to take a proactive stand toward palliative care research.

March 27, 1991

Private Member's Bill C-351, An Act to amend the <F14P11MIC1>Criminal Code<W1> (terminally ill persons), was read for the first time in the House of Commons. The bill died on the Order Paper with the ending of the parliamentary session.

May 16, 1991

Private Member's Bill C-203, An Act to amend the <F14P11MIC1>Criminal Code<W1> (terminally ill persons), was read for the first time in the House of Commons. On 24 September 1991 it received second reading and was referred to Legislative Committee H for consideration. The Committee began hearings on the bill on 29 October 1991. On 18 February 1992, the Legislative Committee H adjourned <F255P255MIC255>sine die.

June 19, 1991

Private Member's Bill C-261, An Act to legalize the administration of euthanasia under certain conditions, was read for the first time in the House of Commons. On 24 October 1991 it was debated at second reading and dropped from the Order paper.

November 1991

The B.C. Royal Commission on Health Care and Costs recommended that the provincial government lobby the federal government for changes to the Criminal Code such that the <F14MI>Code<W1> would recognize: the competent adult patient's right to refuse treatment or demand its cessation and that such a right may be exercised by a duly appointed proxy in cases where the patient is not competent; that terminally ill patients be allowed to request fatal doses of pain medication; s.241(b) of the <F255MI>Criminal Code be amended so that aiding the suicide of a terminally ill patient would not be a criminal offence; where consent of a patient is unavailable, the physician should not be under a legal obligation to provide therapeutically useless treatment nor should be criminally liable for the withdrawal of therapeutically useless treatment. To date, these recommendations have not been implemented.

November 10, 1991

The B.C. College of Physicians and Surgeons issued a statement against euthanasia after reviewing the deaths of two of Dr. Peter Graff's patients (both patients, one suffering from ALS and one suffering from colon cancer, died of repeated doses of morphine and valium). A provincial coroner's inquiry urged a review of Dr. Graff's actions by the College of Physicians and Surgeons. The College ruled that Dr. Graff's method of treatment was unacceptable and the coroner ruled that both patients died from morphine overdoses. However, no criminal charges were laid.

January 6, 1992

The Quebec Superior Court ruled in the case of Nancy B., a woman suffering from an incurable disease, that turning off her respirator at her request and letting nature take its course would not be a criminal offence.

March 1992

The Canadian Medical Association released a Policy Summary on Advance Directives for Resuscitation and other Life-Saving or Sustaining Measures. This Summary directed that physicians should assist their patients with these endeavours and they should honour a patient's advance directive unless there are reasonable grounds for not doing so.

June 1992

The Corporation Professionelle des Médecins du Québec (CPMQ) admitted that it had reprimanded a physician after he had given a 38-year-old AIDS patient a lethal injection of potassium phosphate with the consent of the patient and his family. The CPMQ disciplined the physician with three months probation, he was ordered to consult with another doctor within 72 hours of taking on a new patient, and to consult with a colleague before administering large daily doses of morphine. No criminal charges were laid.

August 1992

A Toronto nurse, Scott Mataya, entered a guilty plea to a lesser charge of administering a noxious substance. On 23 November 1991 he had been charged with first degree murder in the killing of a terminally ill patient at the Wellesley Hospital. The patient had consented to the withdrawal of his ventilator so that death could occur. The patient began to convulse and vomit and Mataya gave him a lethal dose of potassium chloride. Mataya was convicted and received the maximum three-year probation period, a suspended sentence and was ordered to surrender his nursing licence.

November 1992

The Sub-Committee of the Standing Committee on Justice and the Solicitor General on the Recodification of the General Part of the Criminal Code heard witnesses on the implications of the Criminal Code for health care providers who give effect to the directions of patients to withdraw medical treatment and on the question of physician-assisted suicide.

December 9, 1992

Private Member's Bill C-385, An Act to amend the <F14P11MIC1>Criminal Code<W1> (aiding suicide) was read for the first time in the House of Commons. This bill was never debated in Parliament and died on the Order Paper when an election was called.

1993

The Canadian Medical Association released Canadian Physicians and Euthanasia. This Report was intended to provide information to physicians so that they might develop their own position on the topic.

1993

Vancouver newspaper columnist Lyn Cockburn and two of her senior editors were found in contempt of court when they refused to give a coroner's inquest the identity of their source for a 1991 article describing the assisted suicide of a woman with AIDS. The coroner's decision has been referred to judicial review by the British Columbia Supreme Court.

February 1993

The Sub-Committee on the Recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General recommended that the Minister of Justice conduct a review of the legal and philosophical issues surrounding assisted suicide.

March 22, 1993

Members of the House of Commons defeated a motion that called upon the government to consider the advisability of introducing legislation on the subject of euthanasia and ensuring that those assisting terminally ill persons who wish to die will not be subject to criminal liability.

April 1993

An Ontario physician who gave a lethal injection to a seriously ill cancer patient was given a three-year suspended sentence after pleading guilty to a charge of administering a noxious substance. The physician had been charged with second-degree murder.

September 30, 1993

In a five to four decision, the Supreme Court of Canada dismissed an appeal by Sue Rodriguez (a woman suffering from the incurable disease of amyotrophic lateral sclerosis) in which she challenged the validity of the Criminal Code prohibition on assisted suicide under the Canadian <F14>Charter of Rights and Freedoms<F255D>. On 29 December 1992 the British Columbia Supreme Court had ruled that section 241 of the Criminal Code does not violate the <F14MI>Canadian Charter of Rights and Freedoms<W1>. On 8 March 1993, in a 2 to 1 decision, the British Columbia Court of Appeal had dismissed an appeal by Sue Rodriguez with respect to her request for physician-assisted suicide.

November 3, 1993

The British Columbia Ministry of the Attorney General issued Crown Counsel Guidelines on Euthanasia and Assisted Suicide.

February 16, 1994

Private Members' Bill C-215 was read for the first time in the House of Commons

August 1994

The Canadian Medical Association voted against euthanasia.

September 1994

A Joint Statement on Advance Directives was released by the Canadian Long Term Care Association, the Canadian Home Care Association, the Canadian Hospital Association, the Canadian Nurses Association, the Canadian Public Health Association, and Home Support Canada (developed in collaboration with the Canadian Bar Association). This statement includes guiding principles for health care facilities when developing cardiopulmonary-resuscitation (CPR) policy, CPR as a treatment option, competence, the treatment decision, its communication, implementation and review, and palliative care and other treatment.

October 1994

A Joint Statement on Resuscitative Interventions was released by the Canadian Hospital Association, the Canadian Medical Association, and the Catholic Health Association of Canada (developed in cooperation with the Canadian Bar Association).

November 1994

Robert Latimer was given the mandatory minimum sentence of life imprisonment with no possibility of parole for ten years for the second-degree murder of his daughter Tracy. Tracy had been born with a severe form of cerebral palsy and was severely physically and developmentally disabled. In order to end her suffering, Mr. Latimer put Tracy in the cab of his truck and piped the exhaust back into the cab. Tracy died of carbon monoxide poisoning.

December 1994

A Halifax couple, Cheryl May Myers and Michael William Power, were given suspended sentences, three years' probation, and 150 hours of community service after they pled guilty to manslaughter for suffocating Ms. Myers' terminally ill father. The pair had been charged with second-degree murder.

February 1995

Jean Brush pleads guilty to manslaugther in the death of her husband who was suffering from Alzheimer's. Cecil Brush had expressed his wish to die in July 1994. The judge felt that she had suffered enough and he gave her a non-custodial sentence.

This Chronology draws heavily on: Margaret Smith and Susan Alter (Law and Government Division) and Sandra Harder (Political and Social Affairs Division), "Current Issue Review 91-9E, Euthanasia and Cessation of Treatment," Research Branch, Library of Parliament (6 February 1992, Revised 12 January 1994); and Russel Ogden, "The Right to Die: A Policy Proposal for Euthanasia and Aid in Dying," Canadian Public Policy 20:1 (1994) 1-25. Other information was distilled from testimony.

Appendix E

Legislative Proposals Previously Introduced in Parliament

A number of Private Members' Bill have been introduced in the House of Commons in relation to euthanasia or assisted suicide. These include<R>Bill C-351 (Mr. Robert Wenman)<R>Bill C-203 (Mr. Robert Wenman)<R>Bill C-261 (Mr. Chris Axworthy)<R>Bill C-385 (Mr. Svend Robinson)<R>Bill C-215 (Mr. Svend Robinson).

C-215

Mr. Robinson (Burnaby- Kingsway) <R>An Act to amend the Criminal Code (aiding suicide)<R>Introduced and read for the first time - February 16, 1994<R>Placed on the Order of Precedence - February 22, 1994<R>Debated at second reading; dropped from the Order Paper - September 21, 1994

C-385

Mr. Robinson (Burnaby- Kingsway)<R>An Act to amend the Criminal Code (aiding suicide)<R>Introduced and read for the first time - December 9, 1992<R>Prorogation of Parliament

C-261

Mr. Axworthy (Saskatoon- Clark's Crossing) <R>An Act to legalize the administration of euthanasia under certain conditions to persons who request it and who are suffering from an irremedial condition and respecting the witholding and cessation of treatment and to amend the Criminal Code<R>Introduced and read for the first time - June 19, 1991<R>Placed on the Order of Precedence - September 24, 1991<R>Debated at second reading; dropped from the Order Paper - October 24, 1991

C-203

Mr. Wenman - An Act to amend the Criminal Code (terminally ill persons)<R>Introduced and read for the first time - May 16, 1991Placed on the Order of Precedence - May 16, 1991<R>Designated as a votable item - May 31, 1991<R>Debated at second reading; read the second time and referred to Legislative Committee H - September 24, 1991

C-351

Mr. Wenman - An Act to amend the Criminal Code (terminally ill persons)<R>Introduced and read for the first time - March 27, 1991<R>Prorogation of Parliament

Appendix F

Relevant Provisions of the Criminal Code and the Civil Code

Criminal Code

The subject areas that were identified as being dealt with, directly or indirectly, in the Code are: (1) pain control and sedation practices (2) withholding and withdrawal of life-sustaining treatment, (3) assisted suicide, and (4) euthanasia. Furthermore, although certain portions of the provisions may not appear to relate directly to the conduct described, the sections have not, for the most part, been abridged in light of the fact that each provision should be read in its entirety in order to better appreciate its purpose.

Consent to Death

14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

Surgical Operations

45. Every one is protected from criminal responsibility for performing a surgical operation on any person for the benefit of that person if

(a) the operation is performed with reasonable care and skill; and

(b) it is reasonable to perform the operation, having regard to the state of health of the person at the time the operation is performed and to all the circumstances of the case.

Duty of Persons to Provide Necessaries

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

(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;

(b) as a married person, to provide necessaries of life to his spouse; and

(c) to provide necessaries of life to a person under his charge if that person

(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and

(ii) is unable to provide himself with the necessaries of life.

(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies upon him, to perform that duty, if

(a) with respect to a duty imposed by paragraph (1)(a) or (b),

(i) the person to whom the duty is owed is in destitute or necessitous circumstances, or

(ii) 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 endangered permanently; or

(b) with respect to a duty imposed by paragraph 1(c), 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.

(3) Every one who commits an offence under subsection (2) is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

Duty of Persons Undertaking Acts Dangerous to Life

216. Every one who undertakes to administer surgical or medical treatment to another person or to do any other lawful act 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 doing so.

Duty of Persons Undertaking Acts

217. Every one 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.

Criminal Negligence

219. (1) Every one is criminally negligent who

(a) in doing anything, or

(b) omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, "duty" means a duty imposed by law.

Causing Death by Criminal Negligence

220. Every one who by criminal negligence causes death to another person is guilty of an indictable offence and is liable to imprisonment for life.

Causing Bodily Harm by Criminal Negligence

221. Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Homicide

222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(2) Homicide is culpable or not culpable.

(3) Homicide that is not culpable is not an offence.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act,

(b) by criminal negligence,

(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death, or

(d) by wilfully frightening that human being, in the case of a child or sick person.

Murder

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;

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or

(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

Classification of Murder

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 second degree murder.

Manslaughter

234. Culpable homicide that is not murder or infanticide is manslaughter.

Punishment for Murder

235. (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.

(2) For the purposes of Part XXIII [Punishments], the sentence of imprisonment for life prescribed by this section is a minimum punishment.

Punishment for Manslaughter

236. Every one who commits manslaughter is guilty of an indictable offence and liable to imprisonment for life.

Counselling or Aiding Suicide

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.

Administering Noxious Thing

245. Every one who administers or causes to be administered to any person or causes any person to take poison or any other destructive or noxious thing is guilty of an indictable offence and liable

(a) to imprisonment for a term not exceeding fourteen years, if he intends thereby to endanger the life of or to cause bodily harm to that person; or

(b) to imprisonment for a term not exceeding two years, if he intends thereby to aggrieve or annoy that person.

Assault

265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose; or

...

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

266. Every one who commits an assault is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years, or

(b) an offence punishable on summary conviction.

Assault Causing Bodily Harm

267. (1) Every one who, in committing an assault,

...

(b) causes bodily harm to the complainant,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

(2) For the purposes of this section and sections 269 and 272, "bodily harm" means any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature.

Aggravated Assault

268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Unlawfully Causing Bodily Harm

269. Every one who unlawfully causes bodily harm to any person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Sentence of Life Imprisonment

742. Subject to s.742.1 [Power of court to delay parole], the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be

(a) in respect of a person who has been convicted of high treason or first degree murder, that he be sentenced to imprisonment for life without eligibility for parole until he has served twenty-five years of his sentence;

(a.1) in respect of a person who has been convicted of second degree murder where that person has previously been convicted of culpable homicide that is murder, however described under this Act, that he be sentenced to imprisonment for life without eligibility for parole until he has served twenty-five years of his sentence;

(b) in respect of a person who has been convicted of second degree murder, that he be sentenced to imprisonment for life without eligibility for parole until he has served at least ten years of his sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefore pursuant to section 744; and

(c) in respect of a person who has been convicted of any other offence, that he be sentenced to imprisonment for life with normal eligibility for parole.

Civil Code

Title Two
Certain Personality Rights

Chapter I
Integrity Of The Person

Art. 10 Every person is inviolable and is entitled to the integrity of his person.

Except in cases provided for by law, no one may interfere with his person without his free and enlightened consent.

Section I<R>Care

Art. 11 No person may be made to undergo care of any nature, whether for examination, specimen taking, removal of tissue, treatment or any other act, except with his consent.

If the person concerned is incapable of giving or refusing his consent to care, a person authorized by law or by mandate given in anticipation of his incapacity may do so in his place.

Art. 12 A person who gives his consent to or refuses care for another person is bound to act in the sole interest of that person, taking into account, as far as possible, any wishes the latter may have expressed.

If he gives his consent, he shall ensure that the care is beneficial notwithstanding the gravity and permanence of certain of its effects, that it is advisable in the circumstances and that the risks incurred are not disproportionate to the anticipated benefit.

Art. 13 Consent to medical care is not required in case of emergency if the life of the person is in danger or his integrity is threatened and his consent cannot be obtained in due time.

It is required, however, where the care is unusual or has become useless or where its consequences could be intolerable for the person.

Art. 14 Consent to care required by the state of health of a minor is given by the person having parental authority or by his tutor.

A minor fourteen years of age or over, however, may give his consent alone to such care. If his state requires that he remain in a health or social services establishment for over twelve hours, the person having parental authority or tutor shall be informed of that fact.

Art. 15 Where it is ascertained that a person of full age is incapable of giving his consent to care required by his state of health, consent is given by his mandatary, tutor or curator. If the person of full age is not so represented, consent is given by his spouse or, if he has no spouse or his spouse is prevented from giving consent, it is given by a close relative or a person who shows a special interest in the person of full age.

Art. 16 The authorization of the courts is necessary where the person who may give consent to care required by the state of health of a minor or a person of full age who is incapable of giving his consent is prevented from doing so or, without justification, refuses to do so; it is also required where a person of full age who is incapable of giving his consent categorically refuses to receive care, except in the case of hygienic care or emergency.

The authorization of the court is necessary, furthermore, to cause a minor fourteen years of age or over to undergo care he refuses, except in the case of emergency if his life is in danger or his integrity threatened, in which case the consent of the person having parental authority or the tutor is sufficient.

Art. 17 A minor fourteen years of age or over may give his consent alone to care not required by the state of his health; however, the consent of the person having parental authority or of the tutor is required if the care entails a serious risk for the health of the minor and may cause him grave and permanent effects.

Art. 18 Where the person is under fourteen years of age or is incapable of giving his consent, consent to care is not required by his state of health is given by the person having parental authority or the mandatary, tutor or curator; the authorization of the court is also necessary if the care entails a serious risk for health or if it might cause grave and permanent effects.

Art. 19 A person of full age who is capable of giving his consent may alienate a part of his body inter vivos, provided the risk incurred is not disproportionate to the benefit that may reasonably be anticipated.

A minor or a person of full age who is incapable of giving his consent may, with the consent of the person having parental authority, mandatary, tutor or curator and with the authorization of the court, alienate a part of his body only if that part is capable of regeneration and provided that no serious risk to his health results.

Art. 20 A person of full age who is capable of giving his consent may submit to an experiment provided that the risk incurred is not disproportionate to the benefit that can reasonably be anticipated.

Art. 21 A minor or a person of full age who is incapable of giving his consent may be submitted to an experiment only in the absence of serious risk to his health and of objection on his part, provided that he understands the nature and consequences of the act; the consent of the person having parental authority or of the mandatary, tutor or curator is necessary.

An experiment may be carried out on one person alone only if a benefit to the health of that person may be expected, and the authorization of the court is necessary.

An experiment on a group of minor persons or incapable persons of full age shall be carried out within the framework of a research project approved by the Minister of Health and Social Services, upon the advice of an ethics committee of the hospital designated by the Minister or of an ethics committee created by him for that purpose; in addition, such an experiment may be carried out only if a benefit to the health of persons of the same age group and having the same illness or handicap as the persons submitted to the experiment may be expected.

Care considered by the ethics committee of the hospital concerned to be innovative care required by the state of health of the person submitted to it is not an experiment.

Art. 22 A part of the body, whether an organ, tissue, or other substance, removed from a person as part of the care he receives may, with his consent or that of the person qualified to give consent for him, be used for purposes of research.

Art. 23 When the court is called upon to rule on an application for authorization with respect to care, the alienation of a part of the body, or an experiment, it obtains the opinions of experts, of the person having the parental authority, of the mandatary, of the tutor or the curator and of the tutorship council; it may also obtain the opinion of any person who shows a special interest in the person concerned by the application.

The court is also bound to obtain the opinion of the person concerned unless that is impossible, and to respect his refusal unless the care is required by his state of health.

Art. 24 Consent to care not required by a person's state of health, to the alienation of a part of a person's body, or to an experiment shall be given in writing.

It may be withdrawn at any time, even verbally.

Art. 25 The alienation by a person of a part or product of his body shall be gratuitous; it may not be repeated if it involves a risk to his health.

An experiment may not give rise to any financial reward other than the payment of an indemnity as compensation for the loss and inconvenient suffered.

Appendix G

Sample Amendment Proposals

During the course of its study the Committee received a number of proposals for amendments to the Criminal Code.

1. Prof. Bernard M. Dickens (Excerpt from brief presented to the Special Committee)

1. Assisted suicide should be accommodated under the Criminal Code by the introduction of an exception to section 241(b). Counselling should remain punishable under section 241(a).

2. A person physically incapable of suicide should be able to apply to a court under comparable guidelines to those proposed by Chief Justice Lamer in the Rodriguez case in order to be permitted to die with the assistance of another. This would require an exception to section 14 of the Criminal Code, which provides as follows:

14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

3. The presiding judge, in each case, would give a specified person a discretion, as opposed to a duty, to act; that is, the applicant would have no "right-to-die", and the specified person would have no "duty to kill".

4. The condemnation of killing without or outside the scope of judicial approval, as described in paragraph 2 above, would be practically reinforced by introduction of a more sensitive category of indictable third degree murder for which the punishment, like that for manslaughter and criminal negligence causing death, would be up to life imprisonment. The judge would cater the punishment on conviction to the evidence of the circumstances. A person charged with first or second degree murder could be convicted of third degree murder on evidence that establishes a killing following the victim's competent request made outside a judicial approval. Killing, without the grant of a request, would remain punishable probably as first degree murder. A category of third degree murder might better preserve the balance than existing law between the public's assurance of the protection of vulnerable human life and the recognition of non-malicious but misguided infliction of death.

2. Eike-Henner Kluge, Proceedings, September 27, 1994, Issue no. 15, pp. 39-43.

"I would therefore suggest to this Committee that a possible restructuring of the <F14P11MIC1>Criminal Code<W1> in this matter might proceed as follows:

217.1 Nothing in sections 14, 45, 215, 216 and 217 and other relevant sections of the <F14P11MIC1>Criminal Code<W1> shall be interpreted as

(a) requiring a qualified medical practitioner to commence or continue to administer surgical or medical treatment to a person who competently requests that such treatment not be commenced or continued;

(b) requiring a qualified medical practitioner to commence or continue to administer surgical or medical treatment to a person who has previously made a competent determination that such treatment not be commenced or continued and who has not revoked such determination;

(c) requiring a qualified medical practitioner to commence or continue to administer surgical or medical treatment to a person when a duly empowered proxy decision-maker of that person, using appropriate standards of proxy decision-making, formally requests that such treatment not be commenced or continued; or

(d) preventing a qualified medical practitioner from commencing or continuing to administer palliative care and measures intended to eliminate or relieve the suffering of a person for the sole reason that such care or measures will or are likely to shorten the life expectancy of the person, except where

(i) that person competently requests or has competently requested that such measures not be undertaken if these measures have a life shortening effect; or

(ii) the duly empowered proxy decision-maker of that person, using appropriate standards of proxy decision-making, requests that such measure not be undertaken if these measures have a life shortening effect.

"I would further recommend that this Committee accept in its wisdom that several new sections be added to the Criminal Code, to read as follows:"

xxx.1 Notwithstanding anything in section 14, 45, 215, 216, 217 or any other relevant section, no qualified medical practitioner commits an offence set out in those sections where the practitioner

(a) does not commence or continue to administer

(i) surgical or medical treatment to a person who competently and formally requests that such treatment not be commenced or continued;

(ii) surgical or medical treatment to a person who has previously made a competent determination that such treatment not be commenced or continued and who has not revoked such determination;

(iii) surgical or medical treatment to a person when a duly empowered proxy decision-maker of that person, using appropriate standards of proxy decision-making, formally requests that such treatment not be commenced or continued;

or

(b) commences or continued to administer palliative care and measures intended to eliminate or relieve the suffering of a person for the sole reason that such care or measures will or are likely to shorten the life expectancy of the person, except where

(i) that person competently requests or has competently requested that such measures not be undertaken if these measures have such a life shortening effect, or

(ii) the duly empowered proxy decision-maker of that person, using appropriate standards of proxy decision-making, requests that such measure not be undertaken if these measures have a life shortening effect.

xxx.2 In the event that the life of the person will or is likely to be shortened by the use of palliative measures involving medications or similar means, and the time-span of this shortening exceeds what would normally be expected using appropriate and recognized palliative measures, the case shall be subject to review by an independent body consisting of a physician having no connection with any party involved in the case, a member of the Attorney General's Department of the jurisdiction in which the death has occurred, and an independent member of the public having training in ethics.

xxx.3 If this independent body finds that the event was not in accordance with the competently expressed wishes of the patient or in accordance with appropriate standards of proxy decision-making, as the case may be, the otherwise relevant provisions of the Criminal Code shall apply.

Further, since the Supreme Court agreed, in unanimous fashion, that Section 241(b) of the Criminal Code violates Section 15 of the Charter of Rights, since the proposals by Chief Justice Lamer of the Supreme Court of Canada and Chief Justice McEachern of the British Columbia Court of Appeals, each in their own fashion, would meet the requirements set out in Section 1 of the <F14MI>Charter<W1> I would urge this Committee to agree that Section 241(b) of the <MI>Criminal Code<W1> should be struck down as not being saved by Section 1 itself.

Further, I would urge this Committee to consider the following as a draft proposal for a voluntary euthanasia statute:

yyy.1 If a person suffers from an incurable and irremediable disease or medical condition, and if that person experiences the disease or condition as violating the fundamental values of that person, then

(a) that person may make application to a superior court for permission to request the assistance of a physician in terminating his life as quickly and as painlessly as possible in keeping with the fundamental values of that person; and

(b) on presentation of evidence by an independent psychiatrist and the attending physician that the person making the request is competent to do so, the court shall hear such a request as expeditiously as possible.

yyy.2 The court, upon due consideration of the mental physical state of the person requesting permission under yyy.1, and of that person's fundamental values; and taking due account of the medical nature of the affliction of the person requesting such assistance, may grant such an application.

yyy.3 Any permission granted under sec.yyy.2

(a) shall be registered with the regional coroner of the relevant jurisdiction;

(b) shall be for a period of six months; and

(c) shall include an order that there shall be due notification of the coroner if such a permission has been acted upon.

yyy.4 Any physician acting upon a permission granted under sec. yyy.2 an in accordance with the wishes of the person making the request under yyy.1, shall use such measures as he deems, upon due consideration, to be appropriate for terminating the life of that person as quickly and painlessly as possible.

yyy.5 Any physician acting upon a permission granted under secs. yyy.2, yyy.3 and yyy.4, and acting in accordance with the provisions set out therein, shall be deemed not to have committed an offence within the meaning of this Act.

zzz.1 Any person who suffers from an incurable and irremediable disease or medical condition, and who, by reason of incompetence, is unable to make application to a court as allowed under sec. yyy.1, may have such application made for him by a duly empowered proxy decision-maker using appropriate standards of proxy decision-making.

zzz.2 Any application brought under sec. zzz.1 shall be treated by the court as though it was an application brought by the incompetent person on his own behalf.

zzz.3 In considering an application brought under sec. zzz.1, the court shall have due regard to the previous competently expressed wishes and values of the now incompetent person, if that person was previously competent.

zzz.4 In the event that such values cannot be satisfactorily ascertained, the court shall use the values and standards currently accepted by Canadian society, where the nature of these values and standards shall be determined by the court in consultation with

(a) a duly empowered representative of an association for handicapped persons;

(b) a practising physician;

(c) a practising nurse;

(d) a person having expertise in biomedical ethics; and

(e) a member of the public at large.

zzz.5 In the event that an application brought under sec. zzz.1 is on behalf of a person who has never been competent, the court shall use the values and standards currently accepted by society, where these values shall be determined as under sec. zzz.4.

3. Law Reform Commission, Euthanasia, aiding suicide, and cessation of treatment, Report 20, July, 1983.
1. Euthanasia

The Commission does not favour the legalization of euthanasia in any form. That is the view expressed in the following two recommendations, both discussed earlier in the Report:

The Commission recommends against legalizing or decriminalizing voluntary active euthanasia in any form and is in favour of continuing to treat it as culpable homicide.

The Commission recommends that mercy killing not be made an offence separate from homicide and that there be no formal provision for special modes of sentencing for this type of homicide other than what is already provided for homicide.

II. Aiding Suicide

The Commission does not favour decriminalizing the offence of aiding or counselling suicide. In Working Paper No. 28 it tentatively recommended that, "[n]o person shall be prosecuted for an offence under the present section without the personal written authorization of the Attorney General". However, in this Report, for reasons explained earlier, the Commission has omitted that particular recommendation. On the subject of aiding or counselling suicide, the following recommendation expresses the Commission's final position:

The Commission recommends that aiding suicide not be decriminalized, and that section 224* of the Criminal Code be retained in its present form.

III. Cessation and Refusal of Treatment

The Commission recommends the following amendments to the <F14P11MIC1>Criminal Code<W1>:

199.1 Nothing in sections 14, 45, 198, 199 and 229 shall be interpreted as requiring a physician

(a) to continue to administer or to undertake medical treatment against the expressed wishes of the person for whom such treatment is intended;

(b) to continue to administer or undertake medical treatment, when such treatment has become therapeutically useless in the circumstances and is not in the best interests of the person for whom it is intended.

This provision is essentially similar to what the Commission proposed in Working Paper 28. The few changes which have been made merit brief commentary.

The addition of section 229 to the proposed section was made at the suggestion of one of the legal groups consulted. Section 229 of the Criminal Code creates the offence of administering noxious things or poison to someone. Although it is highly unlikely that this provision would be applied in medical matters, it was thought advisable to include it since it is at least potentially applicable.

The adverb "clearly" has been removed from both paragraphs of the proposed provision. In the Working Paper both paragraphs referred to, "...the clearly expressed wishes...". Representatives of one of the provincial Bars convinced us that this word did not actually add anything and threatened to create difficulties in interpretation. Accordingly, we have omitted it from the final version.

Many of our correspondents criticized the use of the expression, "medically useless treatment", in the amendment proposed by the Working Paper. It was suggested that this expression has an excessively pejorative connotation used in this context. in that it implies that the general practice in medicine is to provide extraordinary treatment, or to "overtreat".

A treatment which is initially medically useful may become useless at a certain later point from the therapeutic perspective. To better express the idea that treatment is a continuum and to underline the notion that at a certain point in time the same treatment can become useless in terms of curing or improving the patient's condition, we changed the expression "medically useless treatment", to, "treatment [that] has become therapeutically useless". The word "therapeutically" is used here in its ordinary sense, that is, the intention is therapeutic when the aim is to treat the patient for the purpose of curing or ameliorating his condition.

It should be noted that we have retained as an additional condition, that the treatment in question is not required if it is not in the best interests of the patient. It can happen that a treatment that has become therapeutically useless, may nevertheless be justified on the grounds of patient interests other than treatment of the medical problem as such. The patient may, for example, wish more time in order to see a relative for one last time, prepare a will or put his or her affairs in order. These would be examples of what in our view can constitute the "best interests" of the patient in this context.

In response to another comment we decided to eliminate the phrase "... except in accordance with the expressed wishes of this person" from the second paragraph. It was felt that that phrase might have been wrongly interpreted to mean that a physician who refused to consent to a patient's express desire for a treatment that was medically counter-indicated in the circumstances could be held criminally liable just for not continuing it.

Basically, then, the proposed amendment incorporates the Commission's major recommendations. The first paragraph merely expresses the present legal rule. Patients are masters of their own decisions concerning themselves. If they have expressed a desire to discontinue treatment already in progress or not to undergo treatment, physicians must then respect that decision. This expression of will is a question of fact. The patient can express it orally or in writing, the latter for example by means of a "living will". Though such living wills are without any binding legal effect in Canadian jurisdictions, they may nevertheless serve as a basis for the interpretation of a patient's wishes. Sanctions that might be imposed on the physician if he bypasses the patient's wishes are already contained in various provisions of the Criminal Code. In any case, he could be charged with assault.

The second paragraph states the principle that a physician cannot be charged under the provisions of the Criminal Code if he ceases to administer a treatment or decides not to administer a treatment which, in the circumstances, has become therapeutically useless and not in the patient's interest. This would be the case, for example, where artificial ventilation was continued for a patient whose cerebral functions had already undergone irreversible cessation.

This would also be the case when a physician who, in order to avoid prolonging the death agony of one of his patients, decides to discontinue antibiotics being given to treat his pneumonia. A further example would be the case of a surgeon who decides not to operate to correct a newborn's deformity because, even if the operation were successful, the infant could not survive his other medical problems.

For reasons explained earlier, this provision applies equally to competent and incompetent patients. Moreover, it does not spell out in detail how the physician should make the decision nor who should be consulted. To comply with the general criminal law standard, those details are not relevant, as long as it can be shown that the treatment was therapeutically useful in the circumstances, made in the best interests of the patient, and not against that patient's wishes.

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.

As explained above, this provision is intended to eliminate any ambiguity concerning the administration of palliative care. Thanks to a very pertinent suggestion by a medical association, the only change from the Working Paper formulation of this proposed subsection, is a slight grammatical modification in the wording to make it clear that the Code sections should not be interpreted as obliging a doctor to cease palliative care already commenced.

This proposal simply expresses the idea that the physician's duty is to provide patients with appropriate palliative care when further therapeutic treatment would serve no purpose. For palliative purposes, the appropriate use of drugs, medication or other pain control treatment is legal and legitimate even if they may have the effect of shortening the patient's life expectancy.

* These sections of the Criminal Code have been renumbered since the Report of the Law Reform Commission in 1983.

Appendix H

Suggested Procedural Guidelines

R. v. Rodriguez - Supreme Court of Canada per Chief Justice Lamer [1993] 3 S.C.R. 519-579 (Dissenting judgment)

1. An application must be made to a superior court for permission to terminate one's life.

2. The applicant must be certified by a treating physician and independent psychiatrist to be competent to make the decision to end her own life, and the physicians must certify that the applicant's decision has been made freely and voluntarily.

3. At least one of the physicians must be present with the applicant at the time the applicant commits assisted suicide.

4. The physicians must also certify that the applicant is or will become physically incapable of committing suicide unassisted, and that they have informed the applicant that he or she has a continuing right to change his or her mind about the decision to terminate life.

5. The Regional Coroner must be given notice and an opportunity to be present at the examination of the independent psychiatrist.

6. The applicant must be examined daily by one of the certifying physicians to ensure that he or she still wants to take his or her own life.

7. The constitutional exemption will expire if the dying person has not exercised the option within 31 days from the date of examination by the independent psychiatrist.

8. The act causing the death of the applicant must be that of the applicant him or herself, and not of anyone else.

Commentary

The Chief Justice indicated that his suggested conditions were tailored to meet the particular circumstances of Sue Rodriguez and while they could serve as guidelines for future petitioners in similar circumstances, each application would have to be considered in its own individual context.

Mr. Justice Cory concurred with the Chief Justice's proposed guidelines. Madam Justice McLachlin also concurred, for the most part, with the conditions as set out by the Chief Justice. However, she was of the view that some of the conditions he proposed might not be essential in all cases. She stated that the necessary conditions could vary from case to case. The critical requirement, in all applications, would be that the applicant freely and voluntarily consent to the assisted suicide.

R. v. Rodriguez - British Columbia Court of Appeal per Chief Justice McEachern (1993) 76 BCLR (2d) 145-168(Dissenting judgment)

1. An application must be made to a superior court for permission to terminate one's life.

2. The applicant must be mentally competent to make a decision to end his or her own life. Such competence must be certified in writing by a treating physician and by an independent psychiatrist who has examined the applicant not more than 24 hours before arrangements are put in place which will permit the life termination and such arrangements must only be operative while one of the said physicians is actually present with the person. (The certificate must include the professional opinion of the physicians that, not only is the applicant competent, but also that, in the opinion of such physicians, the desire to end his or her life is sincere and that the decision has been reached of the applicant's own free will without pressure or influence from any source other than the present circumstances. There must be some assurance that the individual has not changed his or her mind since making the earlier declarations.)

3. The applicant must be terminally ill and near death and there must be no hope of recovering. A condition should be that the applicant is or, but for medication, would be suffering unbearable physical pain or severe psychological distress. The applicant must be informed and must fully understand that he or she has a continuing right to change his or her mind about terminating life. The physicians must also indicate when, in their opinion, the applicant would likely die: (a) if palliative care is being or would be administered, and (b) if palliative care is not being administered.

4. Not less that 3 days before any psychiatrist examines the individual for the purposes of preparing the said certificate, notice must be given to the Regional Coroner for the area or district where the individual is to be examined, and the Regional Coroner or his or her nominee, who must be a physician, may be present at the examination of the person by a psychiatrist in order to be satisfied that the person does, indeed, have mental competence to decide and did, in fact, decide to terminate his or her life.

5. One of the physicians giving any certificate as aforesaid must re-examine the person each day after the above-mentioned arrangements are put in place to ensure that the person does not evidence any change in his or her intention to end life. If the suicide is carried out, such physician must furnish a further certificate to the Coroner confirming that, in his or her opinion, the person did not change his or her mind.

6. No one may assist the person to attempt to commit suicide or to commit suicide after the expiration of 31 days from the date of the first mentioned certificate and, upon the expiration of that period, any arrangements made to assist the person to end his or her life must immediately be made inoperative and discontinued. This is to ensure that the person has not changed his or her mind since the time of examination by a psychiatrist.

7. The act actually causing the death of the person must be the unassisted act of the person him or herself, and not of anyone else.

Commentary

Mr. Justice McEachern cautioned that the above-mentioned conditions were intended only as guidelines that could be modified depending upon the circumstances of each case.

Canadian AIDS Society (Excerpt from brief presented to the Special Committee on Euthanasia and Assisted Suicide)

1. Committees should be established to review all end-of-life options.

2. The state of mind of each patient must not involve depression at the time the decision to end life is made.

3. The physicians and counsellors assisting in the death of the patient should have known the person being assisted for a considerable period of time prior to any agreement to assist.

4. The person seeking death should make the request repeatedly over a period of time.

5. Death should be imminent.

Commentary

The foregoing guidelines were derived from a select group of the members of the Canadian AIDS Society who had taken part in a study conducted by the Canadian AIDS Society of its own members. Those proposing the above safeguards were interviewees who supported a legalization of euthanasia under specified circumstances.

Choice in Dying, Ottawa (Excerpt from brief presented to the Special Committee on Euthanasia and Assisted Suicide on Wednesday, June 1, l994)

1. Guidelines should be created with the right to self-determination being the primary consideration of any forthcoming legislation.

2. More specifically, any reform of the present laws should recognize the right to self-determination and should remove all threat of criminal sanctions for those who assist others in exercising this right.

3. Every person should have the right to:

(a) accept or refuse any or all medical treatment, or continuation of it.

(b) accept or refuse artificial life support, such as artificial methods of feeding, and maintenance of breathing and heart activity.

4. Every person who is suffering from a terminal or incurable illness should have the right to:

(a) decide what level of suffering is bearable;

(b) request and receive professional aid to hasten death, if the request is made clearly and consistently in a way that leaves no doubt about the person's wishes.

5. Advance directives should be legally recognized and followed in the event of a patient becoming mentally or physically incapable.

6. No person should be obliged to assist in the giving of aid to hasten death, but if a professional caregiver exercises the right to decline, it creates, in that same person, the obligation to refer the patient to an alternative qualified person who is willing to comply with the patient's wishes.

7. It should be a recognized duty of medical and palliative care professionals to ensure that "sympathetic" but "impartial" counselling is made available as to the full range of options open to patients. Notwithstanding the importance of counselling the patient, should a patient not wish to be counselled, then that wish must be respected.

8. Only voluntary euthanasia, which is consistent with the principle of self-determination in medical treatment, should be made legal. However, where a presently competent individual had requested voluntary euthanasia, by way of an advance directive, this request should be considered valid, provided the circumstances of its application are clearly outlined.

9. Relatives and others should be permitted to be present during the suicide without risk of penal sanctions.

10. Some form of counselling should be made available to patients dying at home as well as to patients dying in hospitals.

Dying With Dignity (Excerpt from brief presented to the Special Committee on Euthanasia and Assisted Suicide)

1. A request for physician-assisted death must be made by a person voluntarily and repeatedly. The request must be documented and, if possible, witnessed. The request may be in the form of a living will, durable power of attorney for health care, voluntary euthanasia declaration, or any other form of directive whether in verbal, written, or electronic form.

2. Persons competent to make treatment decisions for themselves should be presumed competent to make a request for physician-assisted death. A psychiatric or psychological assessment may be requested by the physician to confirm competency.

3. A request may be made by any competent person who is either terminally ill or in a state of chronic irreversible illness wherein the suffering, from the point of view of that person, is unbearable.

4. The person must be fully informed of all treatment options, including palliative care, and that he or she is free to change his or her mind at any time by revoking the request for physician-assisted death either verbally, in writing, or by electronic means.

5. The person's family or others designated by the person should be informed of the request to die but the final decision must be made by the person seeking death.

6. One physician, preferably the primary care physician of the person, and at least one other health care worker who has known the person for a reasonable length of time, must be consulted and must concur with the diagnosis and prognosis. (It may not always be possible to have the opinion of a second physician. In these circumstances, the other health care consultant could be a nurse, nurse practitioner, social worker or chaplain.)

7. Where possible, a team consultative approach is advisable provided there would be no risk of undue delay or suffering to the person making the request. Consensus is not essential but there must be an awareness that the person requesting assisted death is fully informed and understands the implications of the request.

8. A request by a person for physician-assisted death shall not be acted upon for at least five days after the request is made or such greater time agreed upon by the person and his or her physician. Where the person requesting physician-assisted death would be required to endure unreasonable pain or physical or psychological suffering, the five-day period may be reduced.

9. A physician, preferably the primary care physician, must always be present when the physician-assisted death is carried out and must bring about the death in the most humane and compassionate manner possible.

10. No physician shall be obliged to provide assistance. However, a physician who refuses to assist should refer the person to another qualified physician who would be prepared to act on the person's request.

11. All persons receiving physician-assisted dying must have been legal residents of Canada for at least six months.

12. Every act of physician-assisted dying must be fully documented and reported by the physician to a local coroner and a representative of the federal Ministry of Justice within 30 days from the death of the person.

13. Representatives of the federal Ministry of Justice should review each case of physician-assisted death and report annually to Parliament.

14. Parliament must ensure that the policy of physician-assisted death enacted by Parliament is being adhered to and must determine whether further safeguards are required.

Mr. Yvon Bureau (Testimony before the Special Committee on Euthanasia and Assisted Suicide, Wednesday, May 4, l994)

1. The prohibitions against acts of euthanasia and assisted suicide should be maintained in the Criminal Code for a period of four years.

2. The proscription against assisted suicide in cases where the individual requesting death is in the final stages of life should be removed from the Criminal Code. Further, assistance in voluntary dying should not be considered murder or homicide since there is no victim.

3. An amendment should be made to the Criminal Code explicitly addressing the question of assistance in voluntary dying for persons in the final stages of their lives and penalties should be provided for persons found guilty of such practices.

4. The House of Commons should pass a statute, in 1995, providing that physicians who practise euthanasia or assistance in voluntary suicide on a person who is at the end of his or her life and who have complied with the strict and specific framework set out with regard to such practices will not be prosecuted and convicted.

5. The Department of Health and Welfare Canada, in cooperation with the provincial departments of health, should establish as soon as possible guidelines for the practice of assistance in voluntary dying. The Dutch model may be of interest in this regard. However, the procedures set out in the Netherlands for dealing with persons incapable of consenting to or refusing terminal care should not be considered at all, particularly for persons who have not drafted some form of living will.

6. Every provincial department of health should adopt a policy on special care and attention for all dying persons in 1995. Every health and social services institution should do the same during the course of that year.

7. The responsibility for providing adequate information on the advantages, disadvantages, risks and alternatives to the numerous possible treatment alternatives should be assigned to all health care institutions through their teams of professionals and not to one profession alone. The risk of abuse will be greatly reduced if the responsibility for decision-making lies with an entire multidisciplinary team.

8. Every provincial department of health should strongly recommend that all its institutions inform their users of their rights and responsibilities to refuse and request cessation of treatment. They should also be made aware of their right to die without pain. An advertising campaign should be conducted for this purpose as soon as possible.

9. Users of the health care institutions should be informed about the ways in which they may express their last wishes. They must be made aware that they should appoint others to ensure that their wishes are honoured.

10. A specific section concerning the patient's last wishes should be made in each patient's file and these files should be kept with the various health care institutions. The last wishes of a patient may, for example, be expressed through a living will, or a power of attorney in case of incapacity.

11. The Department of Health and Welfare Canada should invest several billions of dollars to enable all persons who so wish to die at home. This investment will produce enormous returns on all levels.

12. Every provincial department of health should establish a 24-hour 1-800 number to answer questions of dying persons and their families and caregivers on their rights, duties, responsibilities and freedoms. In Quebec, Info-Santé could provide this service.

13. The dying persons should be the focus of the information and decision-making process, notwithstanding any declaration of incompetence to make decisions. The dying person and his or her freedom should take precedence over treatment. The main concern that should lie with health care professionals should be to ensure that free and informed consent or refusal for every treatment offered is obtained and that consent or refusal is honoured in all cases.

14. The consent of the patient's family should be obtained but it should not be mandatory or necessary. A minimal age should be established whereby the family of the patient would not have the right to be informed or to make treatment decisions without authorization from the dying patient.

Commentary

The above-noted proposals, according to Mr. Bureau, would ensure that it would still be possible to prosecute and convict persons who have not complied with the preconditions established for the practices of euthanasia and assistance in dying to be permitted. Expressing free and informed consent or refusal through advanced directives would be recognized as would a power of attorney for the incapacitated. Quality of life would no longer be determined by the number of treatments provided. The dying person would be in a position to decide what is an acceptable quality of life for him or herself. In this way, there would be fewer conflicts of interest for health care professionals and a reduction in the administration of unnecessary treatments for the terminally ill.

Mr. Russel D. Ogden (Excerpt from paper prepared for the American Society of Criminology Conference entitled "Safeguarding Euthanasia: Legislative Proposals in Canada and the United States" at p.15)

Commentary

Mr. Ogden proposed certain minimal safeguards that, in his view, would be essential to incorporate in any form of right-to-die legislation.

1. The patient must give informed consent.

2. There must be a clinical consensus concerning the prognosis for the patient.

3. Counselling should be available for the patient and other persons involved with respect to the following: possible treatment alternatives, the diagnosis and prognosis, the consequences of the aid-in-dying procedure, the underlying motivation for requesting euthanasia, and alternative care environments.

4. An assessment should be required regarding the possible presence of treatable depression.

5. The voluntary participation of the patient and his or her physicians is necessary.

6. An ethical review should take place in all cases.

7. There should be waiting period restrictions.

8. The implementation of the aid-in-dying procedure should be supervised.

9. An independent third party should witness the application for aid-in-dying.

10. Restrictions should be placed on who is eligible to request aid-in-dying.

11. Requests for aid-in-dying and acts of aid-in-dying should be reported in all cases.

12. A formal review mechanism should be established.

The Humanist Association of Canada (Excerpt from brief presented to the Special Committee on Euthanasia and Assisted Suicide)

1. All health care facilities must be required to provide, in addition to physical care, adequate psychological and emotional support to all patients and, in particular, to those who are seriously ill or incapacitated.

2. Requesters for assisted suicide should be conscious and able to affirm or re-affirm the desire to die.

3. The desire to terminate the life of the individual could be expressed in writing, on audiotape, or by any other method that would clearly indicate the wishes of the requester.

4. Independent witnesses should be present.

5. The requester must have made the same request repeatedly and must have been counselled regarding the implications of the decision being made.

6. A physician who assists in a suicide must be required to document, in consultation with other medical personnel, the circumstances in which the requester came to ask for assistance in dying.

7. Where possible, the mechanism causing death should be such that the requester may trigger that mechanism of his or her own accord.

8. Ultimately, the decision to die and the time and manner of death should rest entirely with the requester.

Mr. Réjean Carrier (Testimony before the Special Committee on Euthanasia and Assisted Suicide, Wednesday, April 27, 1994.)

Commentary

Mr. Carrier is an opponent of euthanasia and, as such, he did not propose any comprehensive list of guidelines. However, he did, informally, suggest some conditions that, in his view, would be essential if the present laws were to be changed at some point.

1. The patient must fail to respond to medication for controlling physical pain.

2. The attending physician should make this diagnosis (non-responsive to medication) with another physician(s).

3. The patient should describe the suffering as intolerable.

4. The decision to respond positively to a request for euthanasia should be made by an interdisciplinary team.

5. The interdisciplinary team should be composed of people of various or similar professions that interact with each other in order to decide on the best course of action in each case.

6. National standards should not be developed for dealing with exceptional cases where palliative care is not effective. A lack of criteria in this regard would force institutions to find solutions, quite apart from euthanasia and assisted suicide, that may be acceptable.

Mr. R. Scott Rowand (Testimony before the Special Committee on Euthanasia and Assisted Suicide, June 8, l994)

1. Any legalization of euthanasia and assisted suicide should be limited to a consideration of requests initiated by competent patients where the fact of competence has been determined by a specialist in psychiatry.

2. Care should be taken to explore other options such as enhanced palliative care and pain control.

3. Consultation with a hospital ethics committee should be required to assure that procedural steps have been followed and adequate safeguards are in place to prevent abuse.

4. The entire process should be supervised by the Office of the Coroner or Medical Examiner.

The British Columbia Civil Liberties Association (Testimony before the Special Committee on Euthanasia and Assisted Suicide, Monday, September 26, 1994.)

[A suboption in the creation of defences to criminal prosecution would be] the provision of an absolute defence for assisted suicide and active voluntary euthanasia when certain criteria have been met. The problem with this solution is that it would authorize the provision of aid in dying only after the fact. As a result, we think it would offer insufficient comfort for physicians to come forward and offer services that we believe ought to be available to all Canadians.

This suboption would require Parliament to set out de facto the provisions which must be set out anyway in any regulatory scheme. We believe that setting out a regulatory scheme, amending the <F14MI>Criminal Code<W1> to specifically provide for the conditions under which each of these practices and services can be offered by physicians, is the way Parliament should go.

The Council on Aging (Testimony before the Special Committee on Euthanasia and Assisted Suicide, Friday, January 13, 1995.)

In addition to recommendations for safeguards already presented by various groups, the Senate committee might consider the following:

First, there must be an informed consent for assisted suicide or euthanasia with requirements similar in principle to those required for an informed consent for medical treatment. The requirement of informed consent should be extended to include appropriate advice; that is, alternatives such as palliative care, by not only physicians but also by other professionals such as psychologists, physiotherapists, nurses, pastoral care workers, et cetera, who are skilled and compassionate in caring for the terminally ill.

Second it should be demonstrated that there is no self-interest in those giving advice. This requirement could be met the by the approval of a disinterested third party such as a judge or a board.

Third, consent should not be given under duress.

Fourth, the decision should be given with appropriate written formulations.

Fifth, if the decision is made by a committee, or the attorney for personal care, it should be based on a prior directive and the above requirements should be fulfilled.

In summary, first, the Council on Aging strongly supports the need for palliative care to be available nationwide and in a variety of environments, both urban and rural. Education concerning the principles of palliative care should be available for physicians, other health care providers and the general public.

Second, the Council on Aging believes that legislation enshrining the legitimacy of advance directives based on informed choices should be available throughout Canada.

Third, the Council on Aging maintains that if adequate palliative care services were available and individuals have the choice to state their preferences for treatment in an advance directive prior to becoming terminally ill, the number of individuals who would consider euthanasia or assisted suicide would be minimal.

Fourth, the Council on Aging recognizes the fact that despite being given the best care possible, a small percentage of patients cannot be maintained in a pain-controlled existence. There are different pain thresholds, different abilities to tolerate suffering and different philosophies concerning the bearing of pain.

Fifth, the Council on Aging agrees with physician intervention to ease pain and suffering even if it shortens life. However, in this case, the purpose of the intervention should be pain control, not euthanasia or assisted suicide.

Sixth, the Council on Aging will not take a position on the legalization of assisted suicide and euthanasia. Among the members there were the following perspectives: Some members were prepared to accept the concepts of assisted suicide and euthanasia, provided adequate safeguards were established to protect the vulnerable; some members flatly disagreed with these concepts; and other members voiced the opinion that although they would not wish to terminate their own lives in this manner, it was an individual's right to make his or her decisions.

Finally, the Council on Aging suggests that if euthanasia and assisted suicide were made legal, this should be realized through changes in the <F14P11MIC1>Criminal Code<W1> with adequate safeguards which must be reasonable, enforceable and enforced.

Canadian Bar Association (Excerpt from brief presented to the Special Committee on Euthanasia and Assisted Suicide, March 1995)

Safeguards

If the Committee recommends revising the existing law to permit euthanasia or assisted suicide with certain procedural safeguards to avoid abuse, certain constitutional issues would first have to be addressed. In particular, attention should be paid to the extent to which the criminal law power under the Constitution can properly be used to create an administrative regime for personal rights. The Supreme Court of Canada in R. v. Morgentaler [1988] 1 S.C.R. 30 struck down a Criminal Code provision that limited access to abortion services on the ground that the complex procedure to obtain abortions, and the uneven access to such services across the country, violated the rights of women under section 7 of the Charter. Similarly, any regime recommended by this Committee should be such as can be equally available throughout the country.

It is also recommended that, to avoid abuse, any protocol to permit euthanasia or assisted suicide with certain procedural safeguards must:

1. provide for review or scrutiny prior to the act; and

2. provide for review or scrutiny after the act.

Scrutiny Prior to the Act

The decision to request euthanasia or assisted suicide is a personal one, and the safeguard must be structured to minimize intrusion into the individual's life, while protecting against possible abuses. The safeguard mechanisms may be different depending upon whether it is a physician or other individual (family member or friend) who is to be involved.

The question of who assesses the person's competence, and on what basis, is an important one. There are likely to be difficulties in assessing this, particularly from a psychiatric perspective (for example, defining what constitutes depression). Given the distress, even disorientation caused by catastrophic illness and the pain of dying, difficulties are bound to arise in trying to ascertain whether the voice being heard is truly the person's voice.

The medical profession currently has responsibility for competence assessment with respect to health care decisions. It may accordingly be appropriate for them to retain responsibility with respect to assessing competence to request euthanasia or assisted suicide. However, safeguards should require a second medical opinion as to the patient's competence to make this decision, as well as the voluntariness of the decision. It may also be appropriate to require scrutiny by a non-medical person, such as a judicial or quasi-judicial officer.

Scrutiny After the Act

Decisions to withdraw treatment are highly public decisions, in that they are usually made in hospitals, and are attended by several individuals and substantial documentation in records and charts. By contrast, the decision to die is or can be a very private one.

Both to safeguard against abuse with respect to individuals, and to measure the broader social impact of the policy, it is suggested that any system of safeguards could include an obligation that all acts of euthanasia or assisted suicide be reported to a legislated review board with medical, legal and lay members, and that the board be required to report to Parliament on a regular basis.

Appendix I

British Columbia Crown Counsel Policy Guidelines

Note: The enactment of the Criminal Code is a federal jurisdiction, however, the administration of justice is a provincial responsibility. Therefore, the Attorney-General of each province has discretion as to whether charges are laid. In accordance with these responsibilities, British Columbia has developed the following guidelines:

1. Active Euthanasia and Assisted Suicide Crown Counsel Policy Manual, Province of British Columbia, Ministry of Attorney General, Criminal Justice Branch (Policy 11-3-93, File no. 56880-01, Eut 1)

These guidelines apply in cases where a police report to Crown Counsel reveals a person, motivated by compassion for the deceased, participated in causing a death.

In considering these cases, Crown Counsel will apply the general Charge Approval Policy and will only approve a prosecution where there is a substantial likelihood of conviction and the public interest requires a prosecution.

Given the complex nature of the legal issues and the evolution of palliative care, charging decisions will be made on a case-by-case basis following an examination of the facts and circumstances of each case and taking into consideration the following additional factors in applying the general Charge Approval Policy. The charging decision will be made by Regional Crown Counsel in consultation with the Director of Policy and Legal Services.

Substantial Likelihood of Conviction

In considering whether there is a substantial likelihood of conviction, Crown Counsel must characterize the conduct of the person involved in a death. For the purpose of this policy, this conduct, and the resulting legal consequences are divided into four categories.

"Active-euthanasia" means intentionally terminating early, for compassionate reasons, the life of a person who is terminally ill or whose suffering is unbearable. This conduct is culpable homicide under section 222 of the <F14P11MIC1>Criminal Code<W1> and may constitute the offences of murder, manslaughter or criminal negligence causing death.

"Assisted suicide" means advising, encouraging or assisting another person to perform an act that intentionally brings about his or her own death. This conduct is an offence of either counselling or aiding suicide under section 241 of the <F14MI>Criminal Code<W1>.

"palliative care" means a qualified medical practitioner, or a person acting under the general supervision of a qualified medical practitioner, administering medication or other treatment to a terminally ill patient with the intention of relieving pain or suffering even though this may hasten death. This conduct, when provided or administered according to accepted ethical medical standards, is not subject to criminal prosecution.

"withholding or withdrawing treatment" means a qualified medical practitioner, with consent by or on behalf of the patient, discontinuing or not intervening with medical procedures to prolong life beyond its natural length. This conduct, when provided or administered according to accepted ethical medical standards, is not subject to criminal prosecution.

The factors to be considered by Crown Counsel in characterizing the conduct of the person involved in a death include:

1. The provable intention of the person who caused, accelerated, counselled or assisted the death, recognizing the criminal intents necessary for murder and counselling or aiding suicide.

2. Where the conduct involves a physician and a patient, the position of the Canadian Medical Association and expert medical opinions as to generally recognized and accepted ethical medical practices:

...there are conditions of ill health and impending inevitable death where an order...by the attending doctor of "no resuscitation" is appropriate and ethically acceptable.<$FCanadian Medical Association, Canadian Physicians and Euthanasia, 1993, p. 5>
...an ethical physician "will allow death to occur with dignity and comfort when death of the body appears to be inevitable [and] may support the body when clinical death of the brain has occurred, but need not prolong life by unusual or heroic means".<$FIbid, p. 19 quoting from the Canadian Medical Association: Code of Ethics, CMA, Ottawa, 1990: Items 18 and 19.>
The withholding or withdrawal of inappropriate, futile or unwanted medical treatment and the provision of compassionate palliative care, even when that shortens life, is considered good and ethical medical practice.<$FIbid , p. 20>

3. Whether, with reference to the following considerations, the acts of a qualified medical practitioner, or a person acting under the general supervision of a qualified medical practitioner, constitute "palliative care";

a) As stated by Mr. Justice Sopinka, in Rodriguez v. Attorney General of Canada et al, Supreme Court of Canada, September 30, 1993:

The administration of drugs designed for pain control in dosages which the physician knows will hasten death constitutes active contribution to death by any standard. However, the distinction drawn here is one based upon intention - in the case of palliative care the intention is to ease pain, which has the effect of hastening death, while in the case of assisted suicide, the intention is undeniably to cause death. The Law Reform Commission, although it recommended the continued criminal prohibition of both euthanasia and assisted suicide, stated, at p. 70 of the Working Paper, that a doctor should never refuse palliative care to a terminally ill person only because it may hasten death. In my view, distinctions based upon intent are important, and in fact form the basis of our criminal law. While factually the distinction may, at times, be difficult to draw, legally it is clear.... (at page 34)

b) whether the patient was terminally ill and near death with no hope of recovery;

c) whether the patient's condition was associated with severe and unrelenting suffering;

d) whether accepted ethical medical practices were followed; and

e) whether the patient was participating in a palliative care program or palliative care treatment plan.

4. Whether, with reference to the following considerations, the acts of a qualified medical practitioner constitute "withholding or withdrawing treatment":

a) Under the common law, a physician must accept the patient's instructions to refuse or discontinue medical treatment although such treatment may well prolong life. Canadian Courts have recognized this right, see Malette v. Shulman (1990) 72 O.R. (2d) 417 (Ont. C.A.). As stated by Sopinka, J. in Rodriguez, supra:

To continue to treat the patient when the patient has withdrawn consent to that treatment constitutes battery (Ciarlariello and Nancy B., supra.) The doctor is therefore not required to make a choice which will result in the patient's death as he would be if he chose to assist a suicide or to perform active euthanasia.(at page 34)

b) where the deceased refused treatment or revoked consent to the treatment, wether such refusal or revocation was fully informed and freely done. This will include consideration of whether:

i) the patient clearly understood his or her medical condition and that it may result in death if treatment was discontinued or not engaged;

ii) the patient was mentally incompetent, depressed, or otherwise vulnerable;

iii) the patient's refusal of treatment or revocation of consent and the act of withholding or withdrawing treatment occurred contemporaneously;

iv) the patient was informed and understood his or her ongoing right to reconsider the refusal or revocation of consent;

v) these is any evidence the patient reconsidered his or her initial refusal or revocation of consent;

vi) anyone pressured the patient to refuse treatment or revoke consent to the treatment; and

vii) accepted ethical medical practices were followed.

c) where the deceased was unable to refuse treatment or revoke consent to treatment, consideration of whether:

i) there were instructions given to the qualified medical practitioner by another person or entity authorized to refuse treatment or revoke consent to treatment on behalf of the patient, for example, the existence of a court order or power of attorney for health care;

ii) there was evidence that withholding or withdrawal of treatment was what the patient would have requested had he or she been able to refuse treatment or revoke consent to treatment; and

iii) accepted ethical medical practices were followed.

Public Interest

If Crown Counsel has determined there is a substantial likelihood of conviction, he or she must also be satisfied the public interest requires a prosecution. In determining the public interest, the specific factors to be considered include, but are not restricted to, the public interest factors outlined in the general Charge Approval Policy and the following:

1. The importance of supporting proper professional and ethical standards within the health care professions;

2. Society's interest in the protection of vulnerable persons; and

3. Society's interest in protecting the sanctity of human life, recognizing this does not require life to be preserved at all cost.

2. Quality Control - Charge Approval Policy Crown Counsel Policy Manual, Province of British Columbia, Ministry of Attorney General, Criminal Justice Branch (Policy 2-26-91, File no. 55100-00)

Section 504 of the Criminal Code allows anyone to lay, and directs a justice to receive, an Information alleging a criminal offence. In British Columbia, it has long been the policy of the Ministry of Attorney General that Crown Counsel review all allegations of criminal conduct and apply a single, consistent charging standard before charges are approved and an Information laid. This system of charge approval has received the endorsement of the Justice Reform Commission and the Discretion to Prosecute Inquiry.

The charging standard and procedure to be followed are set out below. Any Informations that are laid without the prior approval of Crown Counsel should be dealt with under the private prosecutions policy, see PRI 1.

A. Charge Standard

Allegations must be examined to determine whether there is a substantial likelihood of conviction; and if so, whether the public interest requires a prosecution of the accused.

1. Substantial Likelihood of Conviction

In determining whether a charge should be laid, Counsel must first conclude that it is likely there will be a conviction after considering all relevant matters including the available evidence, the anticipated defence and the applicable law. A substantial likelihood of conviction is significantly more a prima facie case, but considerably less than a virtual certainty of conviction.

During the charge approval process, Crown Counsel does not have the benefit of hearing the testimony of Crown witnesses, either in direct or cross-examination. Nor does Crown Counsel have the benefit of hearing the defence evidence, if any. During the course of a trial, the Crown's case may be materially stronger or weaker than counsel's initial assessment at the early charge approval stage. For this reason, Crown Counsel must be flexible in applying the substantial likelihood of conviction standard recognizing that the more serious the allegation, the greater the interests of justice in ensuring that provable charges are prosecuted.

2. Public Interest

Counsel must next determine whether the public interest dictates a prosecution. There are a number of factors counsel should consider in assessing the public interest in a prosecution:

(a) The nature and seriousness of the allegations;

(b) the harm caused to the victim, if any;

(c) the personal circumstances of the accused, including his or her criminal record;

(d) the likelihood of achieving the desired result without a court proceeding, including an assessment of the available alternatives to prosecution; and

(e) the cost of a prosecution compared to the social benefit to be gained by it. This will include considerations such as the degree to which this offence (as opposed to this offender) represents a community problem which cannot be effectively dealt with otherwise.

In considering the public interest hard and fast rules cannot be imposed and flexibility in decision making at the local level is essential if the Ministry is to respond to the legitimate concerns of each community.

B. Applying the Charge Standard

If Counsel is to accurately apply the charge standard, the Report to Crown Counsel (RTCC) must provide an accurate and detailed statement of the evidence available. The following are the basic requirements for every RTCC:

(a) A comprehensive description of the evidence supporting each element of the suggested charge(s);

(b) where the evidence of a civilian witness is necessary to prove an essential element of the charge (except for minor offenses), a copy of that person's written statement;

(c) necessary evidence check sheets;

(d) copies of all documents required to prove the charge(s);

(e) a detailed summary or written copy of the accused's statement(s); and

(f) accused's criminal record (if any).

There may be cases where the RTCC will not comply with the quality control standards. The RTCC should then be returned to the investigator with a request for additional information before a charge is approved. If the accused is in custody, Crown should not seek to detain the accused in custody without sufficient written material from the police to justify both the charge and the detention.

If the offence is serious and there is sufficient evidence to charge the detained accused but insufficient information to determine Crown's position on release, resort may be had to s. 516 to adjourn the show cause. This should be used only where it appears necessary to protect the public.

In applying the charge standard Crown Counsel's important obligations are to:

(i) make the decision in a timely manner;

(ii) record the reasons for the decision; and

(iii) where appropriate, communicate with those affected, including the police, so that they understand the reasons for the decision.

Appendix J

Citations for Advance Directives Legislation in Canada

Ontario

Bill 109, An Act respecting Consent to Treatment Act, Bill 108, An Act to provide for the making of Decisions on behalf of Adults concerning the Management of their Property and concerning their Personal Care, Bill 74, An Act Respecting the Provision of Advocacy Services to Vulnerable Persons , and Bill 110, Consent and Capacity Statute Law Amendment Act 2d Session, 35th Leg Ont, 1992 - passed and proclaimed.

Quebec

Public Curator Act, SQ 1989, c.54 - passed and proclaimed. Civil Code of Quebec, LRQ c. 64 1991, art. 10-34.

Nova Scotia

Medical Consent Act RSNS 1988 c. 14 in RSNS 1989, c.279 - passed and proclaimed.

New Brunswick

No legislation in place but an Advance Health Care Directives Committee has studied the issue and has reported to the Minister Justice regarding the development and implementation of advance directives. Minister of Justice intends to study the report and determine if legislation is necessary.

Manitoba

Bill 73, The Health Care Directives Act SM 1992, c.33 - C.H27 of the continuing Consolidation of the Statutes of Manitoba, 1989.

British Columbia

Representation Agreement Act, S.B.C. 1993, c.67 (Bill 48, 1993) combined with Adult Guardianship Act, S.B.C. 1993, c. 35 (Bill 49); Public Guardian and Trustee Act, S.B.C. 1993, c.64 (Bill 50, 1993); and Health Care (Consent) and Care Facility (Admission) Act, S.B.C. 1993, c.48 (Bill 51, 1993) - all passed but not yet proclaimed

Prince Edward Island

Nothing in place or planning stages.

Saskatchewan

Nothing in place or planning stages.

Alberta

Bill 58, Advance Directives Act dropped from the Order Paper when the legislative session ended in November, 1994. Health Minister currently receiving and analysing public input received from a discussion paper on advance directives.

Newfoundland

Bill 41, An Act Respecting Advance Health Care Directives and the Appointment of Substitute Health Care Decision Makers - dropped from the Order Paper when legislative session ended in March, 1995. Reintroduced as Bill 1 An Act Respecting Advance Health Care Directives and the Appointment of Substitute Health Care Decision Makers. First reading on March 16, 1995. Currently awaiting Committee study.

Northwest Territories

No legislation directly governing this issue at present or in the works. However, the Department of Health and Human Services has initiated the development of Standards and Procedures for Advanced Treatment Directives for both Coordinated Home Care Programs and Facility based Long Term Care Programs.

Yukon

Nothing in place or planning stages.

Appendix K

Sources for Sample Directives

Ontario

Publications Ontario (For copies of the Consent to Treatment Act)<R>880 Bay Street<R>Toronto, Ontario<R>M7A 1N8<R>(416) 326-5300<R>toll free in Ontario 1-800-668-9938

Health Information Centre (For information on the Consent to Treatment Act)<R>Ministry of Health<R>2195 Yonge Street, 6th floor<R>Toronto, Ontario<R>M4S 2B2<R>Phone (416) 327-7730<R>toll free in Ontario 1-800-461-2036<R>TDD/TTY 1-800-387-5559<R>Fax (416) 314-8721

Substitue Decisions Project (For information about the Substitute Decisions Act:)<R>Office of the Public Trustee<R>Ministry of the Attorney General<R>145 Queen Street West, 6th floor<R>Toronto, Ontario<R>M5H 2N8<R>Phone (416) 314-2989<R>TDD/TTY (416) 314-2687<R>Fax (416) 314-6190

Advocacy Project (For information about the Advocacy Act:)<R>Ministry of Citizenship<R>700 Bay Street, Suite 204<R>Toronto, Ontario<R>M5G 1Z6<R>Phone (416) 314-8910<R>toll free in Ontario 1-800-665-9092<R>TDD/TTY (416) 314-9018<R>Fax (416) 314-8935

Quebec

My Mandate in Case of Inability<R>Le Curateur public du Québec<R>Les publications du Québec<R>1279, Boul. Charest Ouest<R>Quebec (Quebec)<R>G1N 4K7

Nova Scotia

Office of the Legal Counsel<R>Department of Health<R>Box 488 <R>Halifax, Nova Scotia<R>B3J 2R8<R>Phone (902) 424-7729<R>Fax (902) 424-0719

Manitoba

Legislative Analyst<R>Manitoba Health<R>201-800 Portage Avenue<R>Winnipeg, Manitoba<R>R3G 0N4<R>Phone (204) 945-5835<R>Fax (204) 945-1020

British Columbia

Minister of the Attorney-General<R>609 Broughton Street<R>Victoria, British Columbia<R>V8V 1X4<R><R>Minister of Health and Minister Responsible for Seniors<R>1515 Blanshard Street<R>Victoria, British Columbia<R>V8W 3C8

Appendix L

Summaries of Some Relevant Canadian Court Decisions

Rodriguez v. British Columbia (Attorney-General) 3 SCR (1993) 519.

The appellant, Sue Rodriguez, a 42-year-old mother, suffers from amyotrophic lateral sclerosis. Her condition is rapidly deteriorating and she will soon lose the ability to swallow, speak, walk and move her body without assistance. Thereafter she will lose the capacity to breathe without a respirator, to eat without a gastrotomy and will eventually become confined to a bed. Her life expectancy is between two and fourteen months. The appellant does not wish to die so long as she still has the capacity to enjoy life, but wishes that a qualified physician be allowed to set up technological means by which she might, when she is no longer able to enjoy life, by her own hand, at the time of her choosing, end her life. The appellant applied to the Supreme Court of British Columbia for an order that s. 241(b) of the <F14P11MIC1>Criminal Code<W1>, which prohibits the giving of assistance to commit suicide, be declared invalid on the ground that it violates her rights under ss. 7, 12 and 15(1) of the <F255P255MIC255>Charter, and is therefore, to the extent it precludes a terminally ill person from committing "physician-assisted" suicide, of no force and effect by virtue of s. 52(1) of the Constitution Act, 1982. The court dismissed the appellant's application and the majority of the Court of Appeal affirmed the judgment.

Held (Lamer C.J. and L'Heureux-Dubé, Cory and McLachlin JJ. dissenting): The appeal should be dismissed. Section 241(b) of the Code is constitutional .

Per La Forest, Sopinka, Gonthier, Iacobucci and Major JJ.: The appellant's claim under s. 7 of the Charter is based on an alleged violation of her liberty and security of the person interests. These interests cannot be divorced from the sanctity of life, which is the third value protected by s. 7. Even when death appears imminent, seeking to control the manner and timing of one's death constitutes a conscious choice of death over life. It follows that life as a value is also engaged in the present case. Appellant's security of the person interest must be considered in light of the other values mentioned in s. 7. Security of the person in s. 7 encompasses notions of personal autonomy (at least with respect to the right to make choices concerning one's own body), control over one's physical and psychological integrity which is free from state interference, and basic human dignity. The prohibition in s. 241(b), which is a sufficient interaction with the justice system to engage the provisions of s. 7, deprives the appellant of autonomy over her person and causes her physical pain and psychological stress in a manner which impinges on the security of her person. Any resulting deprivation, however, is not contrary to the principles of fundamental justice. The same conclusion is applicable with respect to any liberty interest which may be involved.

The expression "principles of fundamental justice" in s. 7 of the Charter implies that there is some consensus that these principles are vital or fundamental to our societal notion of justice. They must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result. They must also be legal principles. To discern the principles of fundamental justice governing a particular case, it is helpful to review the common law and the legislative history of the offence in question and, in particular, the rationale behind the practice itself (here, the continued criminalization of assisted suicide) and the principles which underlie it. It is also appropriate to consider the state interest. Fundamental justice requires that a fair balance be struck between the interests of the state and those of the individual. The respect for human dignity, while one of the underlying principles upon which our society is based, is not a principle of fundamental justice within the meaning of s. 7.

Assisted suicide, outlawed under the common law, has been prohibited by Parliament since the adoption of Canada's first Criminal Code. The long-standing blanket prohibition in s. 241(b), which fulfils the government's objective of protecting the vulnerable, is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken. This state policy is part of our fundamental conception of the sanctity of life. A blanket prohibition on assisted suicide similar to that in s. 241(b) also seems to be the norm among Western democracies, and such a prohibition has never been adjudged to be unconstitutional or contrary to fundamental human rights. These societies, including Canada, recognize and generally apply the principle of the sanctity of life subject to narrow exceptions where notions of personal autonomy and dignity must prevail. Distinctions between passive and active forms of intervention in the dying process continue to be drawn and assisted suicide in situations such as the appellant's is prohibited with few exceptions. No consensus can be found in favour of the decriminalization of assisted suicide. To the extent that there is a consensus, it is that human life must be respected. This consensus finds legal expression in our legal system which prohibits capital punishment. The prohibition against assisted suicide serves a similar purpose. Parliament's repeal of the offence of attempted suicide from the Criminal Code was not a recognition that suicide was to be accepted within Canadian society. Rather, this action merely reflected the recognition that the criminal law was an ineffectual and inappropriate tool for dealing with suicide attempts. Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the blanket prohibition on assisted suicide is not arbitrary or unfair. The prohibition relates to the state's interest in protecting the vulnerable and is reflective of fundamental values at play in our society. Section 241(b) therefore does not infringe s. 7 of the Charter.

As well, s. 241(b) of the Code does not infringe s. 12 of the Charter . The appellant is not subjected by the state to any form of cruel and unusual treatment or punishment. Even assuming that "treatment" within the meaning of s . 12 may include that imposed by the state in contexts other than penal or quasi-penal, a mere prohibition by the state on certain action cannot constitute "treatment" under s. 12. There must be some more active state process in operation, involving an exercise of state control over the individual, whether it be positive action, inaction or prohibition. To hold that the criminal prohibition in s. 241(b), without the appellant being in any way subject to the state administrative or justice system, falls within the bounds of s. 12 would stretch the ordinary meaning of being "subjected to. treatment" by the state.

It is preferable in this case not to decide the difficult and important issues raised by the application of s. 15 of the Charter, but rather to assume that the prohibition on assisted suicide in s. 241(b) of the Code infringes s. 15, since any infringement of s. 15 by s. 241(b) is clearly justified under s. 1 of the Charter. Section 241(b) has a pressing and substantial legislative objective and meets the proportionality test. A prohibition on giving assistance to commit suicide is rationally connected to the purpose of s. 241(b), which is to protect and maintain respect for human life. This protection is grounded on a substantial consensus among western countries, medical organizations and our own Law Reform Commission that in order to protect life and those who are vulnerable in society effectively, a prohibition without exception on the giving of assistance to commit suicide is the best approach. Attempts to modify this approach by creating exceptions or formulating safeguards to prevent excesses have been unsatisfactory. Section 241(b) is thus not overbroad since there is no halfway measure that could be relied upon to achieve the legislation's purpose fully. In dealing with this contentious, complex and morally laden issue, Parliament must be accorded some flexibility. In light of the significant support for s. 241(b) or for this type of legislation, the government had a reasonable basis for concluding that it had complied with the requirement of minimum impairment. Finally, the balance between the restriction and the government objective is also met.

Per L'Heureux-Dubé and McLachlin JJ. (dissenting): Section 241(b) of the Code infringes the right to security of the person included in s. 7 of the Charter. This right has an element of personal autonomy, which protects the dignity and privacy of individuals with respect to decisions concerning their own body. A legislative scheme which limits the right of a person to deal with her body as she chooses may violate the principles of fundamental justice under s. 7 if the limit is arbitrary. A particular limit will be arbitrary if it bears no relation to, or is inconsistent with, the objective that lies behind the legislation. When one is considering whether a law breaches the principles of fundamental justice under s. 7 by reason of arbitrariness, the focus is on whether a legislative scheme infringes a particular person's protected interests in a way that cannot be justified having regard to the objective of this scheme. The principles of fundamental justice require that each person, considered individually, be treated fairly by the law. The fear that abuse may arise if an individual is permitted that which she is wrongly denied plays no part at the s. 7 stage. Any balancing of societal interests against the interests of the individual should take place within the confines of s. 1 of the Charter. Here, Parliament has put into force a legislative scheme which makes suicide lawful but assisted suicide unlawful. The effect of this distinction is to deny to some people the choice of ending their lives solely because they are physically unable to do so, preventing them from exercising the autonomy over their bodies available to other people. The denial of the ability to end their life is arbitrary and hence amounts to a limit on the right to security of the person which does not comport with the principles of fundamental justice.

Section 241(b) of the Code is not justified under s. 1 of the Charter. The practical objective of s. 241(b) is to eliminate the fear of lawful assisted suicide's being abused and resulting in the killing of persons not truly and willingly consenting to death. However, neither the fear that unless assisted suicide is prohibited, it will be used for murder, nor the fear that consent to death may not in fact be given voluntarily, is sufficient to override appellant's entitlement under s. 7 to end her life in the manner and at the time of her choosing. The safeguards in the existing provisions of the Criminal Code largely meet the concerns about consent. The Code provisions, supplemented, by way of remedy, by a stipulation requiring a court order to permit the assistance of suicide in a particular case only when the judge is satisfied that the consent is freely given, will ensure that only those who truly desire to bring their lives to an end attain assistance

Section 15 of the Charter has no application in this case. This is not a case about discrimination and to treat it as such may deflect the equality jurisprudence from the true focus of s. 15.

Although some of the conditions stated by Lamer C.J. seem unnecessary in this case, the remedy proposed is generally agreed with. What is required will vary from case to case. The essential in all cases is that the judge be satisfied that if and when the assisted suicide takes place, it will be with the full and free consent of the applicant.

Per Lamer C.J. (dissenting): Section 241(b) of the Code infringes the right to equality contained in s. 15(1) of the Charter. While, at first sight, s. 241(b) is apparently neutral in its application, its effect creates an inequality since it prevents persons physically unable to end their lives unassisted from choosing suicide when that option is in principle available to other members of the public without contravening the law. This inequality — the deprivation of the right to choose suicide — may be characterized as a burden or disadvantage, since it limits the ability of those who are subject to this inequality to take and act upon fundamental decisions regarding their lives and persons. For them, the principles of self-determination and individual autonomy, which are of fundamental importance in our legal system, have been limited. This inequality is imposed on persons unable to end their lives unassisted solely because of a physical disability, a personal characteristic which is among the grounds of discrimination listed in s. 15(1).

Section 241(b) of the Code is not justifiable under s. 1 of the Charter. While the objective of protecting vulnerable persons from being pressured or coerced into committing suicide is sufficiently important to warrant overriding a constitutional right, s. 241(b) fails to meet the proportionality test. The prohibition of assisted suicide is rationally connected to the legislative objective, but the means chosen to carry out the objective do not impair the appellant's equality rights as little as reasonably possible. The vulnerable are effectively protected under s. 241(b) but the section is over-inclusive. Those who are not vulnerable or do not wish the state's protection are also brought within the operation of s. 241(b) solely as a result of a physical disability. An absolute prohibition that is indifferent to the individual or the circumstances cannot satisfy the constitutional duty on the government to impair the rights of persons with physical disabilities as little as reasonably possible. The fear that the decriminalization of assisted suicide will increase the risk of persons with physical disabilities being manipulated by others does not justify the over-inclusive reach of s. 241(b).

In view of the findings under s. 15(1), there is no need to address the constitutionality of the legislation under ss. 7 or 12 of the Charter.

Pursuant to s. 52(1) of the Constitution Act, 1982, s. 241(b) is declared to be of no force or effect, on the condition that the effect of this declaration be suspended for one year from the date of this judgment to give Parliament adequate time to decide what, if any, legislation should replace s. 241(b). While a personal remedy under s. 24(1) of the Charter is rarely available in conjuncture with action under s. 52(1), it is appropriate in this case to grant the appellant, subject to compliance with certain stated conditions, a constitutional exemption from the operation of s. 241(b) during the period of suspension. A constitutional exemption may only be granted during the period of a suspended declaration of invalidity. During that one-year suspension period, this exemption will also be available to all persons who are or will become physically unable to commit unassisted suicide and whose equality rights are infringed by s. 241(b), and it may be granted by a superior court upon application if the stated conditions, or similar conditions tailored to meet the circumstances of particular cases, are met.

Per Cory J. (dissenting): Substantially for the reasons given by Lamer C.J. and McLachlin J., s. 241(b) of the Code infringes ss. 7 and 15(1) of the Charter and is not justifiable under s. 1 of the Charter .

Section 7 of the Charter, which grants Canadians a constitutional right to life, liberty and the security of the person, is a provision which emphasizes the innate dignity of human existence. Dying is an integral part of living and, as a part of life, is entitled to the protection of s. 7. It follows that the right to die with dignity should be as well protected as is any other aspect of the right to life. State prohibitions that would force a dreadful, painful death on a rational but incapacitated terminally ill patient are an affront to human dignity.

There is no difference between permitting a patient of sound mind to choose death with dignity by refusing treatment and permitting a patient of sound mind who is terminally ill to choose death with dignity by terminating life preserving treatment, even if, because of incapacity, that step has to be physically taken by another on her instructions. Nor is there any reason for failing to extend that same permission so that a terminally ill patient facing death may put an end to her life through the intermediary of another. Since the right to choose death is open to patients who are not physically handicapped, there is no reason for denying that choice to those that are. This choice for a terminally ill patient would be subject to conditions. With those conditions in place, s. 7 of the Charter can be applied to enable a court to grant the relief proposed by Lamer C.J.

Section 15(1) of the Charter can also be applied to grant the same relief at least to handicapped terminally ill patients.

Nancy B. v. Hôtel-Dieu de Quebec et al Statement of facts reproduced from Nancy B. v. Hôtel-Dieu de Québec et al. 86 D.L.R. (4th) 385

The plaintiff, age 25, had suffered for two and one-half years from Guillain-Barré syndrome, an incurable neurological disorder that left her incapable of movement. She could breathe only with the assistance of a respirator. With it she could live a long time; without it her life would be brief. Her intellectual capacity and mental competence were unaffected. To establish her right to refuse further treatment, including the continued use of the respirator, she commenced an action for an injunction against the hospital and her physician to require them to comply with her decision. The hospital entered an appearance but did not contest the claim. her physician did not appear. The judge, of his own motion, made the Attorney-General of Quebec a party. All parties were represented at the hearing. The Attorney-General filed an appearance and intervention.

Held, the plaintiff was entitled to the injunction sought. Permission should be given to her physician to cease treatment with the respirator at a time chosen by the plaintiff. The physician was entitled to the assistance of the hospital.

Use of a respirator to maintain life is a "treatment" and hence is something within the individual's control. By arts. 19 and 19.1 of the Civil Code of Lower Canada the person is inviolable except with the person's consent or legal authority, and no one need submit to any treatment, examination or other intervention. By virtue of the Code of Ethics of Physicians, R.R.Q. 1981, c. M-9, r. 4, arts. 2.02.01, 2.03.02 and 2.03.28, a person is entitled to autonomy in respect of his or her body. No treatment may be given to a person except with that person's consent or that of someone authorized by law or mandate to give consent. A physician is obliged under the Public Health Protection Act, R.X.Q. 1977, c. P-35, to protect the health and well-being of an individual but may not interfere with the person's free choice of a physician and must obtain the free and informed consent of the patient to any treatment.

The right of the individual to refuse treatment is almost absolute, being subject only to a corresponding right of others. The individual may not threaten the life or health of others. The individual has the right to determine whether or not to accept treatment and putting and keeping someone on a respirator and without an informed consent is an improper interference with the person.

The Criminal Code, R.S.C. 1985, c. C-46, does not affect the case. The plaintiff's death would be natural and would not involve homicide or suicide.

R. v. Brush Between Her Majesty the Queen, and Jean Brush [1995] O.J. No. 656 Ontario Court of Justice (Provincial Division) Hamilton, Ontario Zabel Prov. J. March 2, 1995.

CHARGE: On February 13th, 1995, Jean Brush pleaded guilty to the following charge: "that on or about the 18th day of August, 1994, at the City of Hamilton in the said Region, did unlawfully kill Cecil Brush and thereby committed manslaughter, contrary to the provisions of section 234 of the <F14P11MIC1>Criminal Code<W1>."

In imposing sentence today, I have considered numerous factors including the tragic circumstances leading up to the events of August 18th, 1994. Jean Brush was born on January 20, 1914, and Cecil Brush was born on July 30, 1913. They were married on June 6, 1936. Mr. Brush was eighty-one at the time of his death and Mrs. Brush is presently eighty-one years of age.

The Brushes were married some fifty-eight years and have one daughter. Cecil Brush worked at Dofasco for forty-three years before his retirement in the early 70's. They lived together for forty-three years in the same house in Stoney Creek. By all accounts they were a very happy and loving couple who were inseparable and enjoying their retirement years.

Unfortunately the health of Cecil Brush started to decline. His eyesight deteriorated; he was diagnosed as suffering from Alzheimer's and consequential depression. Mrs. Brush found it increasingly difficult to deal with her husband who, as a result of his medical condition, was undergoing severe personality changes and suffering from hallucinations.

[...]

The traumatic change in the otherwise happy life at the Brush home is set out dramatically in the report of Doctor Bartolucci, a psychiatrist, which has been filed as an Exhibit in these proceedings. In part of his report the doctor states as follows:

[...]

They had a conversation about both of them dying together and this was after this first admission. He had been imploring her to do something but in the course of the conversation he told her that he would just like to go to sleep and not wake up again."

"There were eight sleeping pills within reach and she asked him if he wanted to take them and he did. Mrs. Brush felt that she should follow him and she took twenty-eight sleeping pills plus some whiskey since she believed that the liquor would enhance the effect of the pills. She and her husband lay down and she woke up in hospital where she learned to her relief that at that time that she had not survived alone, that her husband also survived."

It became apparent from the facts presented to me that both Jean and Cecil Brush were becoming increasingly despondent over the deterioration of Cecil Brush. As a result she had lost a considerable amount of weight prior to July, 1994, because of the increased care that her husband required and the depression they both felt as a result of his condition.

In June of 1994 Cecil Brush was admitted to the Stoney Creek Life Care Retirement Centre for one week but was discharged to the care of his wife at their home in Stoney Creek. On August 3rd, 1994, Cecil Brush was placed in the Clarion Nursing Home in Stoney Creek for a period of one month. During that period of time efforts were being made to find a more permanent home for Mr. Brush.

On August 18th, 1994, at approximately 11:15 a.m. Jean Brush arrived at the nursing home and signed her husband out for lunch. He was to return by 2:00 p.m. that day. Neighbours at the Brush home would indicate that Jean and Cecil Brush were seen to arrive home at around noon on August 18th, 1994.

Shortly after 5:00 p.m. their daughter, Joan Myers, arrived at their home after work. She went upstairs to find her mother and father lying on blankets which had been placed on the floor in the dining room. She immediately called for emergency help and the Fire Department, ambulance personnel and Police arrived shortly thereafter.

The first officer on the scene arrived at approximately 5:20 p.m. He observed Mr. and Mrs. Brush on the floor in the dining room. Jean Brush was lying next to Cecil Brush and was holding his hand. The ambulance personnel were attending to Jean Brush at the time the officer first arrived. The officer noted that Cecil Brush had a large wound to the stomach area in the middle of his stomach just below the rib cage. His shirt had been rolled up just above the rib cage. It appeared to the officer that Cecil Brush has passed away but that Jean Brush was still breathing and was receiving medical care.

[...]

Jean Brush admitted to the Police that she had stabbed Cecil Brush and herself and identified the knife that she had used. According to Defence counsel, Mrs. Brush's evidence at trial would have been that she got the knife and that her husband had his hand on the knife and that he stuck it in himself but was not successful and that she then manoeuvred the knife so the fatal wounds could be inflicted. She had stabbed herself five times in the abdomen and was transported to General Hospital to be treated for her wounds. Her wounds were not considered to be life threatening.

The suicide note which was found was filed as an Exhibit and reads as follows — the note was from a journal that Jean Brush kept and the entry referred to is dated the date of Cecil Brush's death being August 18, 1994, and I quote:

"Cec's and my situation is getting worse day by day and will not get better. Cec being blind and with Alzheimer's disease is like being in a nightmarish hell. We have lived our lifetime and it must end before we become vegetables. Medical profession and Governments won't do anything to use euthanasia or mercy killing to put suffering elderly people out of the torture and agony that they are in."

"People in nursing homes, the people in psychiatric wards, mentally and physically dead but breathing and they are kept alive as long as possible. Why? Why? Handicapped children, extremely handicapped in mental incapabilities and physical incapabilities kept alive but not living per se."

"Do the medical profession and Governments care what effect this has on the families? It doesn't seem like it."

"Joan's life is being disrupted and it will get worse for her and that sacrifice shouldn't be asked of anyone. Families have their own lives to consider. Life for the young must go on."

"Cec as he was, young, vibrant, full of life is no more. He is a shell, dead but not buried because he still breathes."

"Darling Joan: No matter how it happens, it's going to be a shock. I can't let Dad suffer any more. I know I have to go also. I transferred Dad's small account to the joint account but Dana Kelly needs a copy of the Power of Attorney" — namely Dad's. "Would you take it to her when you have a chance and time?"

"We love you and Karen and Shawn and adding Michael to the family."

[...]

ANALYSIS:

Section 236 of the <F14P11MIC1>Criminal Code<W1> of Canada sets out the punishment for the crime of manslaughter as follows:

"Every one who commits manslaughter is guilty of an indictable offence and liable to imprisonment for life."

There is no minimum penalty set out for this offence and the sentences imposed by various courts have ranged from life imprisonment down to a suspended sentence in a small number of cases.

Defence counsel has urged this Court to impose a suspended sentence and Crown counsel has agreed that this type of sentence is within the appropriate range for these particular circumstances.

In reviewing the case law, I found a number of cases where suspended sentences were imposed but none of the cases referred by counsel or reviewed by me are similar to the facts of this case.

The courts have developed a number of principles of sentencing to assist them in imposing sentence and these principles of sentencing are general deterrence, individual deterrence, protection of the public and the offender's rehabilitation. The courts attempt to balance all these principles in arriving at an appropriate sentence.

The question now to be determined is: what is the appropriate sentence to be imposed in this case? Jean Brush is eighty-one years of age. She has been a contributing member of society all her life and has never had any involvement with the law. Because of circumstances which got out of her control, she now finds herself convicted of one of the most serious offences in our <F14P11MIC1>Criminal Code<W1>.

Her and her husband's cries for help were not answered and she became involved in what has been described as a mercy killing or euthanasia in a desperate attempt to end her and her husband's life with some shred of dignity and without becoming burdens on society.

The present state of law in Canada is that suicide is lawful but to assist a suicide is unlawful. The issue of assisted suicides has been addressed by the Supreme Court of Canada in the case of Rodriguez versus The Attorney-General of British Columbia.

[...]

There are compelling and thoughtful arguments on both sides of the euthanasia issue which cannot be resolved by the courts but must be left in Parliament's hands. It is up to the legislators to decide whether the present law should be changed so that someone in Mrs. Brush's position in the future will no longer face criminal sanctions.

SENTENCE: Considering the totality of everything presented to me, I find that in this case exceptional circumstances exist which justify the imposition of a non-custodial sentence. There is no doubt in my mind on what has been presented to me that imposing the most lenient sentence possible would serve the ends of justice and that Mrs. Brush remaining in the community would not endanger the safety of the community.

I can see no principle of sentencing which would cause me to incarcerate Jean Brush and perhaps shorten her life. She has already suffered a harsher sentence than could ever be imposed by this Court, the loss of her loving and devoted husband under these tragic circumstances and the trauma of becoming involved in a very public criminal prosecution at this stage of her life.

I will not compound this tragedy by incarcerating Jean Brush. Accordingly, I am suspending the passing of sentence and Jean Brush is placed on probation for a period of eighteen months. The probation order will contain the usual statutory terms and the following additional terms:

Firstly, she is to report forthwith as required to a probation officer and thereafter as the probation officer directs. As well she is to attend for all medical treatment as directed by the probation officer and abide by all directions as set out by her doctor.

[...]

That is the sentence of the Court unless there is anything else from counsel.

Malette v. Shulman et al.Indexed as: Malette v. Shulman (Ont. C.A.) 72 O.R. (2d) 417 [1990] O.J.

The plaintiff was severely injured in an automobile accident and was taken unconscious to the defendant hospital where she was examined by the defendant physician in the emergency department. He concluded that a blood transfusion was indicated but a nurse discovered a card in the plaintiff's purse identifying her as a Jehovah's Witness and requesting on the basis of her religious convictions that she be given no blood transfusion under any circumstances. Having formed the opinion that the plaintiff's condition made a blood transfusion necessary to preserve her life and health, the defendant physician personally administered transfusions to her and later refused to follow the instructions of the plaintiff's daughter who sought to terminate the transfusions. The physician believed that it was his professional responsibility to give his patient a transfusion and he was not satisfied that the card expressed her current view. The plaintiff recovered and brought an action against the physician, the hospital, its executive director and four nurses, alleging that the administration of blood constituted negligence and assault and battery. The trial judge awarded the plaintiff $20,000 by way of damages for battery. The defendants appealed to the Court of Appeal.

Held, the appeal should be dismissed.

The plaintiff had a right to control her own body. The tort of battery protects the interest in bodily security from unwanted physical interference. Any non-consensual touching which is harmful or offensive to a person's reasonable sense of dignity is actionable. A competent adult is generally entitled to reject a specific treatment or all treatment or to select an alternate form of treatment even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctor's opinion it is the patient who has the final say on whether to undergo the treatment. While in an emergency the doctrine of necessity may protect the physician who acts without consent, the doctor is not free to disregard a patient's advance instructions. The plaintiff had conveyed her wishes in the only way possible.

While the interest of the state in protecting and preserving the lives and health of its citizens may override the individual's right to self-determination in order to eliminate a health threat to the community, it does not prevent a competent adult from refusing life-preserving medical treatment.

The fact that the physician had no opportunity to offer medical advice could not nullify instructions intended to cover any circumstances where advice was not possible. Any doubts about the validity of the card were not rationally founded on the evidence.

The cross-appeal against dismissal of the action against the hospital and the order with respect to costs should be dismissed.

In The Supreme Court Of Nova Scotia<R>her Majesty The Queen against Cheryl Mae Myers And Michael William Power

FOR the purpose of Section 655 of the <F14P11MIC1>Criminal Code<W1> the following is an agreed statement of facts:

  1. Mr. Layton Myers was born on August 14th 1925. He was married to Rita Myers on January 13, 1947. They had three children, Gary, Danny and Cheryl. Cheryl is the youngest.
  2. In January of 1991 Rita Myers had a recurrence of liver cancer and she suffered for many months before dying. She was hospitalized prior to her death.

She was put on life support systems. Mr. Layton Myers, who had worked as a longshoreman for 36 years stopped working when his wife was first diagnosed with cancer in order to stay at home with her.

3. On August 1, 1991, after consultation with Rita Myers' doctor, Layton Myers and Cheryl Myers decided to take Rita off life support systems. Rita died that same day.

4. During the course of Rita Myers' illness, Ms. Myers spent a great deal of time with her father. During that time, Layton Myers told Ms. Myers that if he were to become ill like Rita he did not want to suffer in the way she did. He wanted to maintain his dignity.

5. Cheryl Myers is 36 years old. She left high school before completing grade eleven, She worked with the government for five years and then left to take upgrading courses. She became a single mother when she gave birth to her first child, Candice, who is now ten years old. Mr. Michael Power is 35 years old with a high school education and a community college course in aircraft maintenance taken in Moncton, New Brunswick. He married at the age of 19 and had two children Matthew who is 11 and Madonna who is 16. He separated from his wife, 11 years ago and the divorce was finalized three years ago. Mr. Power has sole custody of both the children and has raised Matthew since he was a baby.

6. Michael Power and Cheryl Myers met in October of 1990 and started living together soon thereafter. Cheryl Myers became pregnant with their child while nursing Rita through her illness and gave birth to Jessica on February 25, 1992. At present Mr. Power and Ms. Myers live in a common-law relationship together with the four children at 127 Herring Cove Road, Armdale.

7. Prior to Rita Myers' death, Michael had a cordial relationship with her. Layton Myers was a very private individual. After Rita died Mr. Power and Layton Myers became close.

8. Around December of 1992 Mr. Myers began to complain of a sore back. At that time he suffered a bad fall. Ms. Myers and Mr. Power convinced him to see his family doctor, Dr. Ernie Johnson. Mr. Myers had tests at Camphill Hospital and was diagnosed as having lung cancer. At that time he was given three months to live. Ms. Myers and Mr. Power met with the doctors and Mr. Power advised Mr. Myers about this prognosis. Mr. Myers was offered chemotherapy treatment but refused since it would not improve the quality of his remaining life.

9. After receiving confirmation of this diagnosis Ms. Myers moved in with her father at 20 Margate Drive in order to care for him. Mr. Power handled the household chores and went over to Layton Myers' house daily to spend time with him. It would have been possible to obtain a caregiver through Veteran Affairs but Mr. Myers, Cheryl Myers and Mr. Power decided that Ms. Myers and Mr. Power would deal with the matter themselves. Layton Myers felt most comfortable with Ms. Myers and Mr. Power. After Layton Myers refused chemotherapy he told Ms. Myers that he did not want to go into the hospital and die as Rita had. He wished to remain at home. He explained to Ms. Myers that he did not want to get to the point where he could not function for himself or have to wear adult diapers. Ms. Myers told her father that she would not let things go that far and that she would take care of him. Mr. Power reportedly was present during this exchange and participated in it.

10. Over the next several months Mr. Myers' health began to fail. Ms. Myers and Mr. Power had to help him to the bathroom and prepare special foods that Mr. Myers was able to digest properly. Mr. Myers lost considerable weight. He was being heavily medicated and he slept a great deal.

11. During this time Mr. Myers again told Ms. Myers and Mr. Power that his wish was to die at home. He asked them to help him die when he could no longer function on his own. Ms. Myers and Mr. Power agreed, though they continued to hold out hope that Mr. Myers would somehow rebound from his condition.

12. During the police investigation of this case a relative of Ms. Myers, a cousin, came forward and indicated to the police in a statement that Mr. Myers had clearly expressed a wish to die to him as well.

13. In April, 1993, Mr. Myers' condition was very bad. He was almost constantly confined to bed. It became necessary for him to use adult diapers as he had lost control of his bodily functions. Mr. Power frequently helped to change those diapers. Mr. Myers was very uncomfortable and embarrassed as a result of the loss of control of his bodily functions and the consequent loss of dignity.

14. Ms. Myers bathed and shaved her father regularly. She provided quality care.

15. Mr. Myers' continued loss of bodily control eventually left Ms. Myers no longer physically or emotionally able to provide primary care to Mr. Myers without assistance. Mr. Power moved into Mr. Myers' house leaving his eldest daughter in charge of the young household. Mr. Power and Mr. Myers spent considerable time together. Mr. Myers' condition worsened daily.

16. By Friday, May 14, 1993, Mr. Myers had reached the point where his breathing was laboured and he was in great pain. Mr. Myers had not eaten since May 11, 1993. That morning would be the last time he recognized Ms. Myers or spoke with Mr. Power, as that was the last day he was conscious.

17. On Saturday morning May 15, 1993, Mr. Myers was unconscious and in intense pain.. Ms. Myers and Mr. Power called Dr. Johnson who was out of town so Dr. Norman Pinsky, who was on call, arrived at Mr. Myers' residence. Dr. Pinsky advised Ms. Myers and Mr. Power that Mr. Myers death was imminent, likely within one or two days at the most. At this point Ms. Myers and Mr. Power knew that all hope for Mr. Myers' survival was gone.

18. Mr. Myers was receiving large doses of morphine to control pain, but it seemed from his breathing that he was regularly experiencing considerable pain.

19. As requested, Dr. Pinsky returned to the Myers' residence later on May 15, 1993. At that time Layton Myers was feverish, his breathing was very laboured and irregular. He was still unconscious. Dr. Pinsky advised Ms. Myers and Mr. Power that he believed Mr. Myers would die very shortly, within hours or that night.

20. Ms. Myers and Mr. Powers discussed their earlier decision not to allow Mr. Myers to continue suffering.

21. Ms. Myers cleaned and shaved her father. She dressed him. At this time, Ms. Myers and Mr. Power placed a pillow over Mr. Myers' face and suffocated him. Ms. Myers then called a funeral home and requested the minister to come to the Myers' residence.

22. Dr. Pinsky signed the Death Certificate and Mr. Myers was buried in the normal course. No autopsy was performed on Mr. Myers as death had been expected.

23. Ms. Myers and Mr. Power did not attempt to make a secret of what they had done. On more than one occasion Ms. Myers advised members of her family of what she had done and why. These people were not favourably disposed to her when she made these revelations. Ms. Myers and Mr. Power also openly advised friends, on more than one occasion, that they had ended Mr. Myers' life and why they had done so. It was in this way that the police found out what had occurred and charges were eventually laid.

Ontario Court (General Division) Her Majesty The Queen against Alberto De La Rocha Reasons For Sentencing Of The Honourable Mr. Justice S. Loukidelis In Timmins Ontario On The 2nd Day Of April, 1993.

The accused stands charged in a two count indictment. Under the first count he was charged with second degree murder and on the second at the same time and place he was charged with administering to Mary Graham a noxious thing, to wit: an injection of 40 mg of morphine and 20 milliequivalents of potassium chloride, with intent thereby to end her life. The accused entered a plea of guilty to the second count and the first count of the indictment was indeed withdrawn.

Following and during the submissions of counsel for the accused, the matter was discussed both in court and between counsel concerning an amendment to count two. The plea was struck and the second count was amended and the accused was rearraigned and entered a plea with the evidence theretofore heard having been taken as having been heard in the trial of the amended count.

The court has been assisted by an agreed statement of facts that was read in by the police investigating officer. In addition the court was told that immediately after paragraph 13 there was a notation in the notes in the hospital records of an observation made of the deceased at 8:20 p.m. and that indicated a deterioration from the deceased's situation as described in paragraphs 13 and 14. While that piece of evidence was submitted by counsel for the accused, counsel for the Crown agreed.

The accused comes before the court without a previous record. I have been urged to consider the principles of sentencing and indeed those have been stated by counsel. These are both particular and general deterrence, the protection of society, and the rehabilitation of the accused person.

[...]

In looking at the submissions of both counsel and their views on the principles of sentencing, counsel for the Crown was not in disagreement with counsel for the accused, that specific deterrence and rehabilitation were not issues in this trial. The sole consideration where the issue was joined is on the question of general deterrence.

Before dealing with those principles, I want to make some reference to the statement of facts to put in context the situation with which the family of the deceased and the doctor were faced on the 15th October in 1991.

Mrs . Graham had not been well. She had seen her doctor and at the end of August 1991 her family doctor had noticed a lump on the neck of Mrs. Graham. By September 24 that lump was conjoined with complaints by Mrs. Graham of difficulty in swallowing and she was sent to a specialist in internal medicine, who then not only noticed by October 7 of that year that the neck mass had increased, but that Mrs. Graham was in some distress. The appointment with Dr. Adesanya was advanced and he saw Mrs.. Graham on October 8.

There was a need of surgical biopsy and Dr . de la Rocha was called in. He saw her on October 9, reviewed the X-rays, and made a preliminary diagnosis that there were two masses there and that it would be necessary to make arrangements for a biopsy. He wanted to refer this patient to expert care in Toronto or Sudbury.

She was admitted to hospital on the 14th of October with the biopsy scheduled to take place on the 15th. She arrived on her own without apparent difficulty.

It was during the biopsy that there were difficulties noted. Dr. Gaida, who was a specialist in anesthesiology and who was to be the anesthetist noted that she had experienced respiratory problems when she was asked to lie down. He noticed that she was cyanosed with partial airway obstruction. It was decided to advance the biopsy.

It was during that procedure that her respiratory difficulties were noted and it was considered necessary to intubate her. Dr. Hook, an anesthetist who was on call at that time, was there and assisted. She was in great distress . Her condition from the examination that preceded the biopsy indicated not only a tumour on the tongue, but a very large tumour in the bronchial area that had occluded one bronchus and on the other it was 50% occluded.

With the ventilator there were problems and it was then that the nurse was requested by Mrs. Graham that she wanted the tube removed. She received that message by reading her lips because presumably with the tube in her mouth she would have had difficulty speaking.

[...]

While not expected to survive the night, at least in the mind of Dr. Hook, she did survive. It was to nurse Cooper that Mrs. Graham gave some cause for alarm. She did not seem to be responsive to normal neurological assessment. She did not answer to her name, did not open her eyes, and did not move in response to pain stimuli.

Subsequently, at 9:30 in the morning, Dr. de la Rocha attended and Mr. George Graham, who had arrived from Sudbury, indicated that he wanted his mother kept alive until the other brother in Burlington, Dr. Jamie Graham, could attend.

We have a situation where the tube is taken out, at her request. The patient knew that she would die . She was told that - - and she had understood that with the removal of the tube that her life had been foreshortened by her own insistence, that the extubation procedure be completed.

Dr. de la Rocha removed the tube and he requested that lots of morphine be supplied. He administered 20 mg of morphine that had been supplied by nurse Janet Donaldson. It was noted that even after extubation (which took approximately 30 seconds — the family was around ) Mrs. Graham breathed on her own and normally, although she had assistance of a Puritan mask that supplied 50% oxygen.

He administered the first 10 mg morphine with a second 10 mg, and then a second 20 mg was given. It is not entirely clear from paragraph 29 whether there was a stoppage of breathing after the 40 mg or between the administration of the first and second administrations of morphine, because paragraph 29 tells me, "Dr. de la Rocha administered the said dosage and by this time the patient had stopped breathing with the heart rate dropping to the 50s." It was at that point that the accused asked f or potassium chloride from the unit and the nurse had not only advised him that there was potassium chloride in the unit, but she would not get it for him. The doctor proceeded to get it and administer it himself.

We do not know whether at that particular time she was breathing. We do know that once the potassium chloride was administered, death followed rapidly with an episode of ventricular fibrillation, and that they called ventricular tachycardia.

[...]

In my view, if it were the advancement of the claim that a medical doctor can administer a lethal dosage of a drug or substance in order to kill a patient f or the purposes of euthanasia, in my view that is a breach of the law and is deserving of severe punishment — not only severe punishment by sanctions (as suggested by the Crown) but should be attended with a long period of imprisonment.

[...]

Until the law is changed, people must obey the law. No one can be held to be above the law in these circumstances, having said that, I am not convinced from the passages that I see that that advance of the claim of euthanasia was in the mind of the doctor when he administered the bolus of potassium chloride. The evidence that establishes for me that the 20 mg of morphine was not a lethal dose — and even the 40 mg in the face of the testimony of Dr. Meloff and others who were questioned in respect to that — did not mean that death would result. At the same time we do know that after 20 mg, or perhaps even after 40 mg her breathing had stopped and her heart rate had fallen to the 50s. She was still alive, but without her breathing it would clearly indicate that death was not a matter of hours or days away, but perhaps seconds or minutes. Under those circumstances it would seem to me that the potassium chloride in those circumstances was administered to a patient who had already stopped breathing.

The question in my mind is what is the appropriate penalty. I take it that general deterrence does play a part here and must play a part in offences of this kind. I take it as a principle that while a first offender ought not to go to jail, there are times when a first offender must go to jail because the offence is a serious one. Here the offence is one of administering a noxious substance.

I take into consideration a number of factors that I have found eloquent testimonials, that is the evidence of not only two of his colleagues and one nurse and one patient who gave evidence today, but the 53 letters that were entered as exhibits four and five respectively. What they show to me is a person of good training, excellent skills, a person who has held his patients first in his professional life. He was prepared at a moment's notice to go in. Many of his patients spoke of the care that he took in explaining to them their illness. His colleagues, both nurses and doctors, not only spoke of his training but his ability to take decisive and quick action to look after his patients with positive benefit to patients. Because of that ability he could conscript or marshall his skills very quickly to meet on-coming emergencies. That talent for decisive action is one of the strong points that came out in these letters.

There is no doubt that he is highly regarded in his profession . He is highly regarded by paramedicals and by the hospital personnel who have worked with him. There is no doubt in my mind that he understands the high calling to which he has been summoned to practice medicine. This is seen in the way he has worked for the benefit of his patients . All of those factors tell me that he has tried to exercise his skills in a positive way.

At the same time it seems to me that in his handling of this particular matter, he took swift action and he took action that brought him into breach of the criminal law . He obviously didn' t take or hear the refusal of the nurse to supply him with the potassium chloride seriously because he himself went immediately to get it. He didn't stop to consider that he was passing from palliative treatment in the administration of the morphine to an action that would bring immediate death to Mrs. Graham. At the same time, at least on the facts to which counsel agreed that I should act show that by the time the morphine was administered, whether one half the total that he gave or all of it, she had stopped breathing.

[...]

Even where the maximum penalty for manslaughter is life imprisonment, a person who commits that offence may well not be incarcerated depending on the facts and circumstances. This was particularly true as well in the decision of R. v Hardy, the case of Barrette Joncas, J. where a husband was given a suspended sentence at the request, and with the approbation of the sisters and the mother of the deceased person. In reading the facts of that case, one cannot help but see the poignant choices that the deceased's family had to make in relation to that particular fact circumstances.

[...]

Indeed there are fact circumstances that make this case different from Mr. Mattaya's case. Here was young man, 25, who had only been a registered nurse for a year or a year and a half, and was faced with a patient who was on life support systems that had been withdrawn. He had been given double the dosage of morphine to that seen here and 60 mg of Valium and who began reacting in a way that in effect caused Mr. Mattaya to panic. At page 21 of the report, the reasons for Justice Wren, he said, "In the unique circumstances of this particular case, in my opinion a sentence must be sufficient to serve the purposes of general deterrence to avert as much as possible by the court acting on behalf of the interests of society the ever present danger of individuals taking into their own hands the right over life and death. The precious nature of life must take foremost consideration in such circumstances. In these unusual circumstances I am of the opinion that a sanction of incarceration is not required to meet these ends."

In looking at that passage I cannot help but be persuaded that in serving the purposes of general deterrence, and my role in acting on behalf of the interests of society, that it is not necessary in these circumstances to order a period of incarceration. As I say, the result may well have been different were I persuaded that this was a case where the accused was relying on the excuse or justification that he was doing this because he believed in euthanasia. It is true that he said that in that paragraph. As I say, I am not convinced that it was not anything more than a retrospective, post-mortem expression of views on the matter.

I also have to take into consideration the views of the family. We seek victim impact statements. We also seek the views of a victim's family. In this case I was moved by the evidence of George Graham. He spoke clearly and to the point on this issue. There is no doubt that he and his brothers have discussed the very issues that were put to him in the questions that were asked. He does not see incarceration as the answer, and I do not think that he was moved by anything but a charitable response to the difficulties in which the doctor has found himself. To me those views of the family have been very important in the conclusion to which I have come.

Having concluded that there should be no incarceration, the next question I must ask myself is what the result should be. In my view there should be a suspended sentence with a period of probation of three years. I append only one condition, that he keep the peace and be of good behaviour.

I have been concerned about the request that I make it a condition of the probation that he not be allowed to practice medicine. That has concerned me over the past few days because I saw that as a possible alternative. But I have come to the conclusion that the interests of justice and the principles of general deterrence will not be advanced by the imposition of a penalty of this kind.

The accused now has a criminal record. He has to face his peers and he also has to know that the principles of life are not excepted for people who face overwhelming disease and are at the point of death's door.

Accordingly I am endorsing the following:

Conviction entered. Sentence suspended. Accused is placed on probation for three years on conditions a) he keep the peace and be of good behaviour.

I should point out to you, Dr. de la Rocha, that where a person has been placed on probation and sentence has been suspended, you must understand that should you breach the terms or condition of your probation, and in the event that you commit a criminal offence and you have been convicted or either one or the other, that you can be brought back before me to be sentenced in relation to this offence, provided that you have not appealed that conviction, provided that you have appealed and the appeal has been dismissed, or you have withdrawn your appeal. That means that you would come back before me and be sentenced anew for this very offence if that were to be the case.

APPENDICES CONT'D


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