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Don't make it murder, but don't make it legal MERCY

KILLING"The time for euthanasia hasn't come to Canada, but
it is time to amend the law and make the punishment less
severe
Date: Aug. 17, 1992
From: Globe & Mail (Toronto, Canada)
Publisher: The Globe and Mail Inc.
Document Type: Article
Length: 995 words

Full Text:
Byline: BARNEY SNEIDERMAN

BY BARNEY SNEIDERMAN D O you believe that when a patient who "has an incurable disease that causes great suffering" wishes
to die, the physician "should be allowed to end the patient's life through mercy-killing?" If your answer is yes, then you share the view
of 75 per cent of Canadians responding to a 1991 Gallup poll.

Yet Canadian law is clearly out of step with public opinion. The doctor who so acts at the patient's insistence commits murder,
because the Criminal Code stipulates that "no person can consent to have death inflicted on him."

In the eyes of the law, the consent of the victim is no defence to a charge of murder, and it is irrelevant that the doer of the deed was
motivated by compassion. Bluntly put, the mercy-killing of one who had begged for death is still murder.

It was recently reported that the Quebec Ministry of Justice was investigating the case of a Montreal doctor who had given a lethal
injection to a dying AIDS patient. He had acted in accordance with the wishes of the patient, who was in the throes of agony that
massive doses of morphine couldn't relieve.

Although he had committed an act that the law defines as murder, the disciplinary committee of the Quebec College of Physicians did
not recommend laying criminal charges. According to the president of the college, the physician "acted in the interests of his patient."
He also expressed the view that in the event of a trial, the jury would not convict.

This intuition is well grounded, because no jury has ever convicted a physician in a mercy-killing case. The hesitancy of the Quebec
legal authorities to lay a charge likely stems from a realistic assessment of the odds against securing a conviction. It was, after all, in
Quebec that Dr. Henry Morgentaler secured jury acquittals in three cases in which he was charged with breach of the Criminal Code
provisions on abortion. Those acquittals sent a clear signal that the abortion law was out of step with public opinion.

That is no doubt the case with the law's hard line that the Montreal physician's compassionate response to his patient's plea is
murder pure and simple. The letter of the law would demand that he be convicted of second-degree murder, which carries a
mandatory minimum sentence of 10 years. Is this the appropriate response to a case in which the "victim" was at death's door and
pleaded for a lethal injection to end the agony wrought by abscesses covering his entire body? Surely not.

The humanitarian act of the Montreal physician is the kind of case that calls into question the law's rigid stand on mercy-killing.
However, we must bear in mind that the legal policy is tempered by escape hatches that mitigate the harshness of the law as written:
the Crown's discretion to lay a reduced charge of manslaughter or to withhold prosecution altogether (as will likely happen in the
Montreal case); the trial judge's authority to accept a guilty plea to manslaughter; and finally the jury's inherent power to acquit an
accused even if he has no defence in law.

In other words, the mercy that the sanctimonious face of the law denies the mercy-killer remains an option that can be exercised in
turn by the Crown, trial judge, or jury.

Parliament should amend the Criminal Code to provide that a compassionately motivated homicide be reclassified as manslaughter
(which, unlike murder, carries no mandatory prison term).

In defining the defence of provocation to a charge of murder, Parliament has already set the precedent for a limited defence by one
who has intentionally killed. That provision permits a manslaughter verdict for an accused who exploded in murderous rage after
being assaulted or insulted. If for no other reason, a limited euthanasia defence would reverse the absurd and unjust policy that holds
that a consensual killing motivated by compassion is murder, whereas a killing motivated by anger and rage may be reduced to
manslaughter.

Is such a modest reform enough? Or should we follow public opinion and legalize medically induced euthanasia? Its advocates claim
that the principle of patient autonomy warrants a law permitting physicians to give lethal injections or assist the suicide of consenting
patients. (Although you are legally free to commit suicide, anyone deliberately helping you commits the Criminal Code offence of
aiding suicide.) Legalized euthanasia is packaged by its proponents as the medical measure of last resort - when it is the only means
available in the face of pain and"or suffering that cannot otherwise be relieved.

Yet such a radical step lacks a moral foundation unless our society is prepared to finance sufficient resources to ensure that a lethal
overdose is truly the measure of last resort. Legalized euthanasia is a mockery unless our health-care system is truly responsive to
the pain and suffering of its patients. We need state-of-the-art medical care, pain control and supportive services in the hospital,
hospice or home setting. It means that no patient begs for death because of inadequate pain control or society's failure to provide
compassionate care to relieve psychological suffering.

In the rare situation in which the physician is driven to desperate measures (as in the Montreal case), the law has the capacity to stay
its hand as a merciful response to a merciful act. But that is a far cry from granting physicians the legal authority to practice
euthanasia. For as the philosopher John Rawls has said, "It is one thing to justify an act; it is another to justify a general practice."

Given the current crisis over a health-care system unable to meet the reasonable needs of all our ailing people, we cannot guarantee
that euthanasia would be practiced solely as the medical measure of last resort. In short, one cannot say that the time for euthanasia
has come to Canada. Barney Sneiderman is a professor at the University of Manitoba's faculty of law.

BARNEY SNEIDERMAN

Copyright: COPYRIGHT 1992 The Globe and Mail Inc.

http://www.globeandmail.com
Source Citation (MLA 9th Edition)
"Don't make it murder, but don't make it legal MERCY KILLING'The time for euthanasia hasn't come to Canada, but it is time to
amend the law and make the punishment less severe." Globe & Mail [Toronto, Canada], 17 Aug. 1992, p. A15. Gale Academic
OneFile, link.gale.com/apps/doc/A164031312/AONE?u=unimelb&sid=bookmark-AONE&xid=d0ae3a2a. Accessed 2 June 2022.
Gale Document Number: GALE|A164031312