The
issue of assisted dying is once again in the public consciousness given several
recent high profile cases challenging the legal prohibition on assisted dying
in jurisdictions on both sides of the Atlantic.
In June 2012 the Supreme Court of British Columbia declared the relevant
provisions of the Canadian Criminal Code which prohibited assisted dying
invalid as they unjustifiably infringed the plaintiff’s rights under the
Canadian Charter of Rights and Freedoms. Almost contemporaneously, the High
Court of England and Wales
heard a case in which it was argued that it would not be unlawful for a doctor
to terminate the plaintiff’s life or assist him in terminating his life on the
basis of the defence of necessity. Further or alternatively, the plaintiff
asserted that Article 8 of the European Convention on Human Rights is infringed
by the current criminal law of England
and Wales
“in
so far as it criminalises voluntary active euthanasia and/or assisted suicide”.These cases raise many important issues for the criminal law, among them the
role of the courts in deciding important moral and ethical debates and the
proper balance to be struck between the desire to protect the sanctity of life
principle and the most vulnerable on the one hand with the desire to respect
individual autonomy and display compassion on the other. Central to any debate
on this topic are the emotions which motivate those involved in assisted dying.
It is difficult to imagine a more emotionally charged event than the taking of
life, particularly the life of a loved one who is suffering, a fact often
acknowledged by the courts. Yet, the courts, review bodies and commissions,
legislators and commentators have yet to place the emotions at the centre of
the debate. This article focuses on the role which emotions play in end of
life decisions and the proper legal response to such decisions given
the strong emotions which motivate them.