Section 14 – Consenting To Death: Episode 16 of the Ideablawg Podcasts on the Criminal Code of Canada

Although we have not traversed very far into the Criminal Code, we have already discussed some fundamental principles of English common law, including common law defences. Codification, as we have seen, does not usually change these traditional concepts but crystallizes the customary into the written rule. Even with codification, common law has informed the interpretation and implementation of the Code sections through the application of case law. Later, we will see how codification can and has radically changed common law, but the section we are now discussing, section 14 of the Criminal Code, is a reiteration of the common law rule – that a person cannot consent to their own death. The corollary to that presumption is that even if a victim does consent, an accused person cannot use this consent as a defence and is still legally liable for his or her actions. The section reads as follows:

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.

Let’s take a deeper look at what this section is saying and what it is not saying. First, the section is actually speaking to us all – not just to an accused person – and acts as a warning: “no person is entitled to consent to have death inflicted.” But why this wording? Why doesn’t the section simply say, “no person shall consent to death?” By putting in the word “entitled,” I submit that not only can we not consent to our own death but we also have no right to do so. This of course opens up a much larger debate on who has ownership over an individual’s life – is it the person or is it the state as the Code seems to suggest? Or is it a combination of the two?

This debate continues, as the Supreme Court of Canada will reopen the issue of the right of a person to die when they consider the constitutionality of the assisted suicide section 241 of the Code in the British Columbia Carter case. I have written previous blogs on the issue: Whose Life Is This Anyway? The Canadian “Right To Die” Debate Part One – Definitions and A Story and Whose Life Is This Anyway? Sue Rodriguez and the Supreme Court of Canada. We will further discuss this when we come to the relevant section in the Code but the issue of whether or not society has an interest in the continuance of our individual lives is a weighty one. The difficulty is we do want society to take responsibility for ensuring the necessities of life such as food, clothing and education – all of which by the way have been subject to great constitutional debate. But we do not want society directing the manner in which we live our lives such as our sexual orientation and our decisions around childbirth. Of course, all of these issues are predicated on the decision to live, not on the decision to die. The question “whose life is this anyway?” does not generate an easy or static answer.

The other part of section 14 is a warning to the offender - the victim’s consent cannot be used to relieve the accused of the criminal responsibility for causing the victim’s death. Again, this argument may be raised in an assisted suicide situation but it could also arise in other scenarios such as sporting events. Although we no longer live in a world where a fight to the death is an acceptable spectacle (do we?) this does not mean the issue is dead – excuse my pun. Although dueling under section 71 is a Criminal Code offence, there are contests where death may not be the object but serious bodily harm certainly is and death may be probable if you engage in the “sport” enough times – prize fighting comes to mind. Certainly, in Canada, “blood” sports are either prohibited or highly regulated as in section 83 of the Criminal Code. Recently, the Canadian government changed the meaning of a “prize fight” under this section to permit mixed martial arts events such as the Ultimate Fighting Championships, a highly popular form of entertainment.

Still when death does occur during the course of a sporting event there may be criminal code repercussions. An infamous example is the Todd Bertuzzi – Steve Moore case, when well –known defence man Todd Bertuzzi punched Moore from behind during a hockey game in Vancouver. Moore suffered serious injuries and Bertuzzi was not charged with the more serious criminal negligence, but with the lesser offence of assault causing bodily harm, which is an infliction of bodily harm without consent. Bertuzzi entered a plea of guilty and received a conditional discharge, a lesser punishment available under the Code.  

This brings us to the related consideration of whether one can consent to bodily harm. A much more difficult issue considering many contact sports involve serious injury. It also brings to mind the fistfight or the let’s-take-this outside kind of attitude that is not unknown in bars across the country. Interestingly, this is where common law and codified law intersects. Although we know from section 8(3) that common law defences are available, this seemingly straightforward exception becomes complicated when consent, as in an assault, form an essential element of an offence.

In determining whether or not consent exists as per the Code, how far can a court rely on and apply the common law principles? This was the issue in the Supreme Court of Canada Jobidon case, wherein the accused stepped out of a bar with the victim and engaged in a seemingly consensual fistfight, which left the victim dead and the accused facing a manslaughter charge. Jobidon was acquitted at trial on the basis of the consent but the Ontario Court of Appeal reversed the decision. The majority judgment in the Supreme Court of Canada, written by Mr. Justice Gonthier, found that the common law conception of consent was relevant to whether or not the victim’s consent was applicable in the circumstances. To that end, Justice Gonthier stated at page 738:

If s. 8(3) and its interaction with the common law can be used to develop entirely new defences not inconsistent with the Code, it surely authorizes the courts to look to preexisting common law rules and principles to give meaning to, and explain the outlines and boundaries of an existing defence or justification, indicating where they will not be recognized as legally effective -- provided of course that there is no clear language in the Code which indicates that the Code has displaced the common law.  That sort of language cannot be found in the Code.  As such, the common law legitimately serves in this appeal as an archive in which one may locate situations or forms of conduct to which the law will not allow a person to consent.

In accordance with these comments, the SCC took an expansive view of section 8(3) and did not feel encumbered by the argument that consent forms part of the actus reus or prohibited conduct of an offence. In this instance, the common law restricted consent in fistfights, where there was bodily harm, for reasons of public policy – to ensure good order and appropriate behaviors. The Court however was very clear to restrict this decision to circumstances, which “vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.”  This was an important caveat for the court as:

Stated in this way, the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game.  Unlike fistfights, sporting activities and games usually have a significant social value; they are worthwhile. 

Indeed, this comment is puzzling. Although sports such as hockey and football are for some worthwhile pursuits, the issue does not lie in the sports themselves but in the injuries occasioned in these sports. Are these injuries equally worthwhile should be the question. The answer lies in the rules of the sport and certainly Bertuzzi’s criminal responsibility depended upon going outside the rules or norms of the sport.  Although only a certain level and type of harm will be tolerated, this tolerance, as it bends and flows, will have an impact on the future of acceptable violence in Canadian society and in Canadian sport.

Episode 16 of the Ideablawg Podcasts on the Criminal Code of Canada; Section 14 - Consenting To Death

Assisted Suicide Appeal By Canadian Government Announced

No surprise that the Federal government will be appealing the assisted suicide decision recently rendered by the British Columbia Supreme Court in Carter v. Canada (Attorney General). As discussed in my previous postings on the issue, the Federal government, through the Minister of Justice Rob Nicholson, had thirty days from the handing down of the BC decision to appeal to the British Columbia Court of Appeal. The time deadline was today and true to form, the government squeezed within the time period by filing the Notice to Appeal today. The government will also seek a stay of the ruling of Madam Justice Lynn Smith, which permits Gloria Taylor, suffering from ALS, to seek an assisted suicide when she so chose to do so through a rarely used constitutional exemption.

In Rob Nicholson's statement announcing the appeal, he maintained that the laws surrounding assisted suicide "exist to protect all Canadians." This idea of safeguarding an individual's life, even if the individual wants to end that life, is very consistent with the Supreme Court of Canada ruling in the Rodriguez case from 1993. Whether or not this idea of "government-knows-best" is still consistent with present Canadian values will no doubtedly be at issue when the Taylor et al case is ultimately heard before the Supreme Court of Canada. Again, considering the make-up of the present day SCC, particularly with the presence of Chief Justice McLachlin, who disagreed with the Rodriguez majority ruling, this rather outmoded idea of government as ultimate protector may be an idea of the past. Stay tuned to this blog for more on this issue.

Whose Life Is This Anyway? Sue Rodriguez and the Supreme Court of Canada

Last posting, I gave some elementary definitions underpinning the controversy surrounding the right to die issue. I started and ended the posting with a reminder: that these issues might be political, philosophical, religious, and socio-economic, but they are also very personal issues as well. Sue Rodriguez is a reminder of this important factor in our discussions. She is also the moniker for the seminal right to die case heard in 1993 by the Supreme Court of Canada: Rodriguez v. British Columbia (Attorney General).

As most of us well know, the Supreme Court of Canada denied Sue the right to doctor-assisted suicide. Returning to the definitions given in my last posting, Sue’s case was not one of euthanasia, whereby a third party takes another’s life in order to ostensibly relieve the ill person’s suffering, but rather the right to legally take her own life, suicide, with the help of a physician. Recall that under section 241 of the Criminal Code of Canada, anyone who assists another person to commit suicide is guilty of an offence. Thus, Sue was seeking protection for the person, the doctor, who would be assisting her in ending her life at the time she appointed. She explained very poignantly why she so desperately wanted her case to be successful: She wanted her son, who was then nine years of age, to “respect the law and did not want her last act on earth to be illegal.” In her book, Uncommon Will, she explained further, "But if I can't obey the law in the end, I'll know at least I did all I could to change it. So will he [her son]." To Sue Rodriguez, her physicality was an integral part of her identity: "If I cannot move my own body I have no life."

As soon as Sue launched her legal battle, lines were drawn. Many right to life groups opposed her claim, likening her position to state approved euthanasia as practiced by the Nazi Germany regime. She also had her supporters, some who were with her until the very end and others who she could no longer trust. John Hofsess, an initial supporter, who was the organizer of the Right To Die Society, quickly became an insider and was heavily involved in Rodriguez’s bid until she learned he had, without her permission, penned a letter to the editor of the Vancouver Sun, under her signature, criticizing the ALS Society. In the end, it was Sue’s lawyer, Vancouver based human rights lawyer Chris Considine, and then NDP MP, Sven Robinson, who stayed the course. Indeed, Sven and an unnamed doctor were with Sue Rodriguez on February 12, 1994 when she passed away after she self-administered a fatal concoction through a straw.

Legally, the Rodriguez decision not permitting assisted suicides and finding section 241 constitutional, split the nine-member court with five justices upholding the section and four justices finding the section constitutionally flawed. The argument was primarily based on section 7 of the Charter of Rights and Freedoms, what is known as the right to life section, although the cruel and unusual punishment section pursuant to s. 12 of the Charter and equality section 15 were also invoked. In the end, the majority judgment, preferred the sanctity of life over the right to die and collective societal rights over an individual’s right to control his or her own life.

The four dissenting justices who sided with Rodriguez, which included then Chief Justice Antonio Lamer and present Chief Justice Beverley McLachlin, wrote in the minority judgment that "the right to die with dignity should be well protected as is any other aspect of the right to life." In their view the Criminal Code prevents people like Rodriguez from exercising autonomy over their bodies available to other people.

What does this case bode for the future? Presently, as I will discuss more thoroughly in a future posting, the British Columbia Supreme Court has recently once again considered the right to die issue through three very different plaintiffs: Lee Carter, Hollis Johnson, and Gloria Taylor. Lee Carter, together with her husband Hollis Johnson, raised the issue on behalf of Lee’s mother, who was forced to end her life overseas instead in her home in Vancouver due to the ban on assisted suicide. Gloria Taylor, like Sue Rodriguez, suffers from ALS and wishes, like Sue, to end her life legally. On June 15, 2012, Madam Justice Lynn Smith found for the plaintiffs and struck down section 241, giving the Federal government a year to amend the Criminal Code accordingly. In the meantime, Justice Smith allowed Gloria Taylor, through a constitutional exemption, the conditional right to commit suicide with a physician’s assistance. A constitutional exemption is a rare power under s. 24(1) of the Charter, used by the court to exempt individuals from the effects of legislation on the basis that the legislation, for this particular individual, is constitutionally oppressive.

Considering the justices who compose the majority are no longer sitting on the Court and Chief Justice McLachlan, a member of the minority in favour of striking down the legislation, is still sitting with a much different court composition, I might add, the arguments raised and accepted in the Carter case may survive Supreme Court of Canada scrutiny. There have also been many more cases of assisted suicide since the Rodriguez case; cases in which the courts have been extremely reluctant to find guilt under s. 241.

In the next posting on this issue, I will discuss some of those cases and the impact they might have on a future Supreme Court of Canada decision. Whether or not there will be such a future SCC decision is dependent on the federal government, particularly Rob Nicholson, the Minister of Justice, who must decide whether or not to appeal the Carter case to the BC Court of Appeal. Such decision must be made within thirty days of the decision, making the deadline the end of next week. In anticipation of this decision, there are a number of websites with petitions asking the Minister to appeal such as the Council of Canadians with Disabilities. Yet, some opinion polls suggest Canadians are in favour of some form of doctor-assisted suicide. The issue therefore remains unresolved.

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.