Whose Life Is This Anyway? The Canadian “Right To Die” Debate Part One – Definitions and A Story

Sue Rodriguez was an active and intelligent woman when she was diagnosed with the debilitating and ultimately fatal, Lou Gehrig’s disease or amyotrophic lateral sclerosis (ALS) in 1991. Indeed, it is her wit and poise many of us remember when we recall the headlines she generated. Her quote, “whose life is it anyway,” spoken in a slow drawl, her ability to speak being slowly taken away by disease, still resonates with Canadians today as once again our courts grapple with the most basic issues of life and death.

As with all controversial issues, the right to die has taken a “life” of its own as it extends over all areas of deeply held beliefs such as philosophy, science, law, religion, politics, and socio-economic concerns. The issue has been considered in all forms of media and in all manners of legal cases. It has been touted in Kevorkian-like advertisement and debated in the highest offices of the land and yet, it is a profoundly personal issue, which transcends nationality and ethnicity.

Throughout this vastness of ideas and beliefs, it is essential to keep in mind that at the very core of the issue, there is always an individual, a person who is suffering, a person who wants a choice where a choice is not legally given. Sue Rodriguez was such an individual those many years ago when she took her right to choose to the Senate and to the Supreme Court of Canada. In the end, it was Sue Rodriguez who choose to die “on her own terms” outside of the law, even though her last wish was to remain one who respected it.

Euthanasia and assisted suicide are actually two different concepts. Euthanasia is the deliberate act undertaken by one person with the intention of ending the life of another person in order to relieve that person’s suffering. There are three forms of euthanasia: voluntary, non-voluntary, and involuntary. Voluntary euthanasia occurs when the act is done in accordance with the wishes of a legally competent individual or on the basis of a valid medical directive prepared when the patient is competent to authorize the procedure. A competent individual is capable of understanding the nature and consequences of the decision to be made and capable of communicating this decision. Non-voluntary euthanasia occurs when the act is done without knowledge of the wishes of a competent individual or, with respect to an incompetent individual. This form of euthanasia may attract criminal sanctioning. The third and last form is involuntary euthanasia occurs when the act is done against the wishes of the individual. This act is indistinguishable from murder or manslaughter and should attract the full force of our criminal law.

The Criminal Code of Canada, pursuant to s.14, essentially prohibits euthanasia by stating: “No person is entitled to consent to have death inflicted on him.” It is a core traditional principle of our criminal law that an individual cannot consent to his or her death. Indeed, one cannot even consent to grievous injury, which explains why even in a consensual violent sport like hockey, Todd Bertuzzi was charged with assault causing bodily harm. Whether or not the sentence imposed, a conditional discharge, was appropriate is another matter for a later blog. In any event, even in the medical sense, a doctor who gives the patient a lethal injection would be criminally liable. Also in the Criminal Code are legal duties placed upon medical personnel, which require them to perform their duties with all due care, requirements contrary to taking a patient’s life.

Therefore, euthanasia is clearly contrary to Canadian criminal law, and should be prosecuted as first-degree murder, because there is an intent to cause death, which is the definition of murder, and the act is most often planned and deliberate, which is the definition of first-degree murder. However, the Canadian reaction to euthanasia scenarios have fallen short of first-degree murder charges and have tended toward lesser charges such as charges of second-degree murder, manslaughter, and administrating a noxious substance. The charge decisions have definitely been influenced by the circumstances surrounding the euthanasia as a response to human suffering and the desire to relieve the suffering, such as in the Robert Latimer case.

Another factor is the unpredictable nature of juries, who are required to make decisions according to the rule of law but can be swayed by emotional factors as well. Finally, it can be legally difficult to prove murder in euthanasia cases. The Crown prosecutor must prove a legal and factual casual connection between the accused’s actions and the death. Typically, medical evidence is required to make this required connection. In euthanasia cases, it may be medically difficult to prove the exact cause of death when a person is in any case close to death and taking considerable pain medication. 

Assisted suicide, on the other hand, is the act of intentionally killing oneself with the assistance of another who provides either the knowledge to do it or the means to do it, or both. Assisted suicide is specifically prohibited in our Criminal Code under s.241, in which counseling someone to commit suicide or aiding or abetting someone to commit suicide is contrary to the law. Even if the person in question does not die from the aid, the person so assisting may be guilty under the section.

The difference between euthanasia and assisted suicide is therefore dependent on the type of involvement of the third party: euthanasia is when the action of a third party intentionally causes the death of a patient such as through the administration of a lethal injection and assisted suicide is when a third party provides the means and/or information necessary but the actual act causing death is carried out by the patient herself.

My next posting will continue outlining the legal background to this debate with a survey of the legal decisions made on the issue. However, to start and end this posting with Sue Rodriguez is essential: she was a real person suffering from the effects of a debilitating disease and her choice, to end her life when she saw fit, not when it was beyond her control, was her truest wish.

Extraditing Magnotta: Explaining the Extradition Treaty

Not unexpectedly, Luka Rocco Magnotta, aka the alleged “body-parts” killer, was arrested, without incident, in Berlin, Germany. As he was arrested outside of Canadian jurisdiction, Magnotta may only be transferred to Canada pursuant to treaty agreements between the two countries. The Treaty now in force dates from 1979 and governs both the extradition of fugitives facing charges (or having been convicted facing sentence) in Canada when found in Germany as well as those fugitives from German justice found on Canadian soil.

In 2004, a supplementary Treaty was implemented between Canada and Germany.  For the most part, this supplement merely clarifies or simplifies the language of the original, but there are a few substantial changes to the document, which I will note. One significant change is a broadening of offences subject to extradition: in the original Treaty, an extraditable offence needed to be listed on a Treaty, while in the amended version, the schedule or list requirement is deleted. Thus, any criminal offence, which is a criminal offence in both Germany and Canada, is subject to the Treaty. In extradition, it is the substance of the crime, which is relevant, and therefore it is of no matter that the crimes may be described differently in each country. As long as the essential elements of the crime are similar, the crime is subject to the extradition process.

There are, of course, some exceptions. For instance, extradition will not be granted for “purely military” offences. Extradition may also be refused if the charge is purely politically motivated or if the charge merely persecutes the fugitive on the basis of race, religion, nationality or political opinion. Some offences are excluded from these exceptions, such as murder and kidnapping.  Also, if the fugitive is a national or a citizen of the country in which he or she is found, and is not therefore a national of the requesting country, the fugitive will not be produced to the requesting country, but prosecuted in the found country.

Additionally, extradition shall not be granted if the alleged fugitive has already been tried and acquitted for the crime or the fugitive has already completely served his or her sentence for the offence. A significant change from the 1979 Treaty is the treatment of situations of amnesty: now extradition may be refused if the fugitive was pardoned or received amnesty for the crime. In the 1979 Treaty, a fugitive was still subject to extradition in cases of amnesty.

Consistent with Charter decisions, the treaty suggests extradition “may be refused” should the crime be one for which the death penalty may be imposed where the other country does not impose the death penalty. However, a fugitive may be extradited, in those circumstances, where the requesting country agrees not to impose the death penalty.

A further possible ground for refusing extradition is on the basis of a conviction of an offence of “contumacy.” The term refers to a disobedience of a court order or a refusal to obey an order, such as a summons. An example would be where the accused failed to appear in court for his trial on a criminal matter and he was convicted in absentia or in the person’s absence. In this instance, extradition may be refused unless the requesting state agrees to permit the fugitive to test the underlying conviction as well. This safeguard ensures that the fugitive’s conviction will be proven properly, based on the facts and evidence and not on the basis of a mere failure to appear. 

There are also various procedures to be followed in requesting extradition under the Treaty. Previously, the request must come through diplomatic channels, but the 2004 amendments now requires the request to come from the respective departments of justice from each country, yet still permitting the use of diplomatic channels where appropriate.

Procedurally, documentation must be sent to support the request. Such information is required to establish the identity of the fugitive, a description of the crime alleged, and proof a warrant for arrest is outstanding. In certain circumstances, if required, information justifying the charges may be sent and presented as well. If the information provided is insufficient, instead of discharging the fugitive for want of prosecution, the state must now request the needed information from the requesting state.

When extradition is finally granted, the fugitive is surrendered to the requesting state’s authorities with the requesting state bearing all expenses of transport. This surrendering may be postponed if the fugitive faces charges in the surrendering state or the state may, as provided by the 2004 amendments, “temporarily” surrender the fugitive to be returned at a later date.

There is a further caveat to the extradition process, which is known as the “rule of specialty.” This rule requires that the fugitive be only tried in the requesting state for those crimes for which he was surrendered. He may face trial on no other charges. This requires particular attention by the requesting state to ensure that all appropriate charges are before the extradition court.

What does this all mean for the Magnotta case? Press reports have suggested Magnotta will be consenting to his surrender to Canada. Considering the provisions of the Treaty, the charges for which he faces, the fact he is a Canadian national, and the documentary evidence, which is readily available to be sent to Germany, Magnotta’s consent makes sense.  On extradition for this charge there appear to be no valid arguments, which could be raised, to stop his surrender to Canadian authorities. Even with consent, it will take some time before Magnotta will be sent back. Formal requests do still need to be made and certain documents are required to be sent and signed. Additionally, in light of the Treaty provisions, the Department of Justice will need to first complete the Canadian investigation to ensure Magnotta will be surrendered for all offences he might possibly face in Canada. Only then, will Magnotta return to face the real issues of guilt or innocence.