Humanist Perspectives: issue 152: Choosing Not To Be

Choosing Not To Be
Christian Beliefs & Modern Canadian Law
by Russel Ogden

In a recent CKNW radio call-in program, Evelyn Martens was invited to discuss the topic of assisted suicide. She had recently been acquitted of charges for aiding two suicides. One telephone caller said that the Sixth Commandment, “thou shalt not kill,” means that suicide is wrong and that Martens is wrong in supporting one’s right to choose the manner and timing of one’s death. Implicit in the caller’s argument is that people are ‘commanded’ to live; those who engage in acts of self-chosen death will face judgement in the afterlife.

Under Canadian criminal law, and in all English speaking countries, it is quite legal to die by one’s own hand. Nevertheless, it is a criminal offence to help someone else to commit suicide, and the maximum penalty in Canada is 14 years imprisonment. This creates the curious situation of criminalising those who help others to carry out a lawful act. To confuse the matter even more, the crime of aiding a suicide does not require that the suicide actually ensue. In other words, when the BC Crown Counsel prosecuted Martens last year for aiding the suicides of Monique Charest and Leyanne Burchell, the law of the land did not even require that Charest and Burchell had attempted suicide. At the preliminary hearing, the Crown argued vigorously that even providing someone with how-to-die literature, such as the book, Final Exit, constituted the crimes of counselling, aiding, or abetting a suicide “whether the suicide ensues or not.”

The criminal law on suicide has not always been so contradictory. Until 1972 it was an offence to attempt suicide and, similar to the current law, it was also a crime to help, advise, or encourage suicide. According to the now obsolete Law Reform Commission of Canada, the reason for decriminalising suicide while maintaining the crime of “furthering suicide” was that people should be free to take their own lives, but others should not be free to help or encourage them. It was believed that without such help, one “might well recover from his suicidal frame of mind.”

Implicit in the law is that “To be or not to be?” is not the question. There is something wrong with those who choose to die, and if they cannot be punished in this life, then at least those who support such actions should be punished. The implication is that we exist to glorify God, to preserve the abstract notion of the sanctity of life, and to make a contribution to society.

Hamlet’s question, “To be or not to be?” is now 400 years old and it deserves public debate as much as ever. In our multicultural and postmodern society, surely we have the capacity to discover conclusions more flexible than a simple ‘yes’ or ‘no.’ After attending Evelyn Martens’ preliminary hearing and trial, I think I can safely say that this 73 year-old grandmother would have supported Hamlet’s choice to live, but also condemned his decisions to kill others against their will. Martens, by attending the self-chosen deaths of Charest and Burchell, challenged the wisdom of our criminal law. She believes that social relationships are intrinsic to good living, and that dying should be no less a social and humane experience. Simply, she believes people are entitled to live and die with friends nearby. Through her activities in the Right to Die Society of Canada, she questioned taboos about death and deliberate dying, and she walked the talk by putting herself in harm’s way to be a friend to others, at the very end.

It seems that Martens tried to see suffering from the experience of the other, not herself. She had empathy. Martens would have encountered many people who experienced suffering in ways that most of us will never understand, mainly because we don’t like to hear such stories. Indeed, one of Charest’s friends testified at trial that she tuned out whenever Charest talked about her pain, which was nearly every day. Leyanne Burchell lived her final months in extraordinary pain; she left a note to assure the world that she had lived well, on her terms, and wanted to die well, on her terms. Both women made their decisions to die after long periods of careful deliberation. Both had detailed awareness of their respective health situations and both made it absolutely certain that their affairs were in order before they died.

One’s life was divinely ordained and therefore must be experienced, no matter how horribly, until it was divinely ended.

Charest, a former nun who still attended church, might have been expected to feel the traditional religious aversion to suicide. However, Charest’s last words were that her good Lord had not come for her, so she was going to Him. Perhaps she had a more sophisticated understanding of her faith and its historical treatment of suicide. After all, it was not until the fourth century that Augustine is said to have associated suicide with eternal punishment. Before then, self-killing was actually a popular form of death for Christian martyrs and was viewed as a quick route to eternal salvation, not punishment, and an escape from earthbound suffering. According to scholars of religious history, members of the Donatist sect thrived on martyrdom and many preferred to kill themselves rather than convert to orthodoxy. In reply to such resistance, Augustine refused to recognise the Donatists as martyrs and decided that instead of being persecuted for their faith, they deserved prosecution as criminals against God and the state. In City of God Augustine argued that the Bible gave no specific permission to commit suicide, whether to achieve immortality or to escape any other evil. Although it is true that the Bible does not offer an opinion about suicide, it is also true that their authors condemn none of the many suicides in the Old Testament and the New Testament. The implication that can be drawn from such moral neutrality is that their deaths were acceptable.

Nevertheless, Augustine determined that killing oneself was a breach of the Sixth Commandment. One’s life was divinely ordained and therefore must be experienced, no matter how horribly, until it was divinely ended. Simply, suicide interfered with the authority of the state and church. This anti-suicide position placed Augustine in the difficult position of having to resolve the conflict of suicided persons who had already been canonised by the church, or an Old Testament hero like Samson. To address the dilemma Augustine concluded: “there are exceptions to the commandment against killing, made by the authority of God himself. There are some whose killing God orders, either by a law, or by the express command to a particular person at a particular time.”

Humanists, because they support principles of free choice, autonomy, and self-determination, may have little trouble accepting the choices exercised by Charest and Burchell. Nevertheless, humanists care deeply about society in general, and they should be bothered that Charest and Burchell died in circumstances of relative secrecy, separated from the support of friends and family. They should also be concerned that Evelyn Martens had to put herself at risk to be their friend at the end.

Although we no longer have any formal law that provides a mechanism by which society can judge Charest’s and Burchell’s self-chosen deaths, we do have Section 241 of the Criminal Code of Canada, which threatens people like Martens. Prosecutions for aiding or counselling suicide are infrequent, but humanists should know that more charges have been laid in the past 10 years than in previous half-century. It is ironic that during the decade that many Canadians believe has been one of increasing tolerance toward issues of choice, personal autonomy, and self-determination, a pattern of intolerance is emerging when it comes to the way the State is dealing with self-chosen death.

The historical treatment of self-chosen death, both in law and morality, suggests that there is no ‘one-size-fits-all’ solution. It is tragic that the State used the law the way it did to judge Martens, and implicitly, Monique Charest and Leyanne Burchell. There are better ways for society to deal with the question, “to be or not to be,” and Canadian humanists should contribute their voices in the search for solutions to this problem.

Russel Ogden is a criminologist and sociologist who has been researching assisted death for nearly 15 years. His current research focuses on covert assisted death providers.