La décision de la Cour suprême sur l’aide à mourir vient s’ajouter aux dispositions complexes des lois qui régissent les actes portant atteinte à la vie humaine.

There has been considerable public debate about killing since the February 6, 2015, Supreme Court of Canada decision in Carter v. Canada (AG) on assisted death. Those who are unhappy with the Court’s ruling argue that all life is sacrosanct, ergo all killing is wrong. But that’s wrong. Our criminal laws have held since before the Supreme Court was created that not all deaths are the same, and not all killing is a crime. The Carter decision does not open a new door; it continues a long line of deliberate policy choices about what kind of deaths we are going to criminalize and to what extent we are going to do so.

In Canadian criminal law there are vast differences in how deaths and the actions that caused them are regarded, even though in all cases the victims are equally dead. This in turn carries significant differences in the treatment of the perpetrators, ranging from no criminal liability or penal consequences at all to reduced consequences to mandatory life imprisonment. The following is a list of the main variables and social policy choices we have made. Note the absence of any regard for compassion-based killing, but long-standing deference to social values such as provocation, self-defence and drunkenness.

Age. A Canadian under the age of 12 cannot be charged with any criminal offence, even if they deliberately and “with malice aforethought” cause someone’s death. Americans have made a very different policy choice: children as young as six can be charged with homicide in juvenile court; other countries such as England have set the minimum age at 10. In Canada, the young person is considered in need of assistance more than censure and so is treated under the social welfare system.

Military engagement. Canada has decided that killing under the rules of combat is not a crime — proactive killing by the military is justified on the grounds of public safety. Yes, this is a policy choice. Switzerland, for example, maintains a position of homeland defence only and in recent decades has debated abolishing its military altogether.

Retribution. Some countries have decided that state-sponsored killing in the form of capital punishment is not a crime, but rather legitimate retribution. Canada replaced the death penalty with mandatory minimum sentences of incarceration for first- and second-degree murder in 1976.

Intention and planning. Planning an intentional killing is regarded as the most serious of all actions classed as homicide (unlawful killing) and is charged as first-degree murder. It carries a mandatory sentence of life with full parole eligibility at 25 years.

Intention but no planning. Intentionally killing someone but without planning is regarded as less serious (although it’s not immediately clear why the person who broods is more dangerous than the impulsive person) and is charged as second-degree murder. It carries a mandatory sentence of life but with parole eligibility at between 10 and 25 years.

No intention or planning. Killing someone but without the specific intent to do so and without any planning is regarded as less serious again and is charged as manslaughter. It carries no minimum punishment, and upon conviction it can entail any sentence from probation to a maximum of life imprisonment.

Motherhood. A mother who kills her child during or after birth is treated differently from a father who might do so, and at a level of culpability below murder or even manslaughter. The Criminal Code recognizes that she may not be “fully recovered from the effects of giving birth” and as a result of that or “of the effect of lactation consequent on the birth…her mind is then disturbed.” There is no minimum punishment for infanticide, and the maximum is five years in prison.

It is time for us to review some of the more archaic and nonscientific defences that we continue to allow.

Negligence. A person may be convicted of criminal negligence causing death where in doing anything they show “wanton or reckless disregard for the lives or safety of other persons.” A conviction may also lie if the person omits to do anything which he or she is required by law to do. If a firearm is used in the commission of the offence, there is a four-year mandatory minimum; otherwise the penalty is again probation up to life imprisonment.

Mental disorder. A person with a mental disorder can be charged with a criminal offence, but if they are found to meet specified criteria they must be declared not criminally responsible. They are considered incapable of forming the requisite ability to discern right from wrong, and so are diverted to the forensic mental health system.

Nonmental disorder automatism. The Supreme Court has held that a charge of murder may be reduced to manslaughter where the person acted in a zombie-like state without consciousness of their actions. That lack of consciousness may also be taken into account when sentencing the individual. This defence recognizes the occurrence of a transient mental state that falls short of an actual mental illness.

Drunkenness. “Advanced intoxication” on the part of the perpetrator is available to reduce a conviction from murder to manslaughter, with the resulting lesser penalty range. The perpetrator is held to have lacked the specific intent required for murder. (“Extreme intoxication” akin to automatism is a complete defence to a charge, but it is not available in crimes of violence.)

Self-defence. Self-defence may result in an acquittal if the victim dies, but the test is rigorous and generally centres on showing that there was no other way for the accused to save himself or herself.

Spousal abuse. While available to spouses of either sex, this defence has normally been raised by women who kill in the context of an abusive relationship. Analogously to self-defence, it may result in acquittal or a reduction in the conviction or sentence.

Use of force. A person is justified in using “as much force as is reasonably necessary” to prevent the commission of certain offences, even if that force results in death. As with self-defence, the test is rigorous but can result in acquittal. Related defences include use of force in defence of a dwelling house or other real property.

Provocation. What would otherwise be murder may be reduced to manslaughter if the perpetrator caused the death “in the heat of passion caused by sudden provocation.” The classic Hollywood scenario is the husband returning home to find his wife in flagrante delicto with another man and killing one or the other.

Duress. A person who kills because of a threat of imminent death or bodily harm can avail themselves of the common law defence of duress, notwithstanding the Criminal Code restrictions on the defence.

Necessity. The defence of necessity is very similar to duress, but the former arises from surrounding circumstances while the latter stems from threats made by a person. A defence of necessity requires imminent danger, no reasonable legal alternative and that the harm being caused be proportionate to the harm avoided. Again, the test where a death is caused is very high.

Peace officers. A peace officer is justified in intentionally killing someone if they believe on reasonable grounds that it is necessary to do so for self-preservation or the preservation of other lives and, in the case of an escape from a penitentiary or flight from arrest, the escape or flight cannot be reasonably be prevented less violently.

The reality of Canadian law is not as Preston Manning recently characterized it in the Globe and Mail: “The highest duty of the state is to affirm and preserve human life rather than sanction the taking of it.” Rather, as the Supreme Court noted in Carter, “the sanctity of life is one of our most fundamental societal values” (emphasis added).

The first public policy point one might take from Carter is that it does not impose an unprecedented shift of the sort Manning imagines — as the existing 18 choices for how we respond to death caused by another person demonstrate.

The second public policy point might be to ask whether it is time to review some of the more archaic and nonscientific defences we continue to allow. We could pause on each of the 18 items and ask why we have chosen to privilege or not privilege particular actions or intentions. Surely the traditional notion of provocation (and the other “manly” defences of self-defence, use of force and preventing escape) could be challenged as rather patriarchal policy. Why does self-induced drunkenness continue to be excused? Is there really any science behind the claim of new mothers’ “lactation insanity”?

The third public policy point stems from the Court’s proposed requirements for decriminalizing assisted death: the termination of life must be done by a physician; the individual must be a competent adult; there must be clear consent; there must be a grievous and irremediable condition; and the condition must be causing enduring suffering that is intolerable to the individual.

What will happen when death is caused on the basis of compassion but not in complete conformity with this framework? This is certain to still occur, whether because of fact patterns of age or competency, lack of clarity of the consent or uncertainty about the degree of suffering; or where no physician is readily available. The Court has already been confronted with challenges to restrictions on young persons’ medical autonomy (see, for example, A.C. v. Manitoba, 2009 SCC 30), and similar issues have recently been in the news about access to Aboriginal healing traditions. The Carter criteria also close the door to situations where the individual has suffered traumatic brain injury such that they are incapable of providing consent, and yet they may still be assessed as being in “a grievous and irremediable condition” and experiencing “enduring suffering.”

The Supreme Court appears to have recognized that Carter is not the final word when it said: “The scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.”

This leaves open the possibility of also legislating a type of culpable homicide (akin to manslaughter and infanticide) with no mandatory minimum penalty, in recognition of fact patterns where the motivation is not malice but rather caring and compassion. Indeed, over 30 years ago the Law Reform Commission recommended revision of the homicide provisions, with one type of intentional homicide carrying a mandatory minimum and another type of intentional homicide carrying no mandatory minimum. The mandatory minimum is the elephant in the room here, and arguably it is partly behind retention of most of the defences noted above. In some cases, judges and juries are simply looking for a way to avoid the disproportionality of a mandatory life sentence given the person’s reduced level of moral culpability. (See, for example, the case of Robert Latimer, where the judge would not allow the defence of necessity to be left to the jury, and the jury then used a constitutional exemption to reduce the mandatory sentence to one that they considered proportionate. That sentence was later overturned.)

If a death occurs in compliance with the Carter criteria, no crime will have occurred. But if a death occurs that is an inch away from meeting the Carter criteria, then the perpetrator may face life in prison. To borrow from the Court, “The choice is cruel.” If, for example, we were to abolish the reduced offence of infanticide because of the lack of scientific basis for lactation insanity, we might still feel compassion for the new mother who intentionally kills her child. The same can be argued for all the cases that will continue to fall outside the strict criteria of Carter.

Carter resolves one issue. As medical science improves, it expands the shadowy area between life and death. Are we prepared to continue the post-Carter discussion?

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