Should inmates fed up with prison be allowed the right to die?

What if Canada had a right-to-die law and Justin Bourque, the guy who gunned down three Mounties in New Brunswick last year, wanted to make use of it, rather than spend at least the next 75 years in prison?

It's not as absurd a question as it sounds. Canadians are headed into a renewed discussion on the right to die as the Supreme Court this year prepares to rule on a couple of constitutional challenges to the law forbidding assisted suicide and Quebec implements its dying with dignity legislation.

What makes the discussion even more tangible is the debate going on in Europe after a rapist-murderer in Belgium who's spent 30 years behind bars successfully won court approval to die under the country's broad euthanasia law. Frank Van Den Bleeken, who was found not criminally responsible for his crimes, argued he could not psychologically deal with the prospect of ending his days in prison.

The Belgian government ultimately blocked the decision this week, but meanwhile more than a dozen other prison inmates reportedly have filed euthanasia applications. It's likely the discussion will continue.

European countries have abolished capital punishment but the those that have or are considering right-to-die legislation may now face the possibility of seeing it reintroduced by the back door, ironically at the behest of the criminals themselves.

Now we head into the realm of "what if." Euthanasia and assisted suicide remain illegal in Canada. The new Quebec law is bound to be tested. But let's assume Canada joins those European countries and some U.S. states and approves some form of assisted dying under strictly controlled circumstances.

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“My general view is that rights that are generally available are available to people who are prisoners unless for some reason its expressly excluded by needing to serve time," says Catherine Latimer, executive director of the John Howard Society, a service organization that works with inmates and advocates for prison reform.

That theoretically would include the right to die, but a lot would depend on how the law is crafted, Latimer told Yahoo Canada News. 

Belgian law allows euthanasia for mental conditions

Belgium has one of the broadest euthanasia laws in Europe – last year extending it to children of any age – and encompasses untreatable mental illness as well as physical ailments. Van Den Bleeken argued failure of programs to deal with his sex drives and the prospect a lifetime in custody made living intolerable, a position the court accepted.

Eike-Henner Kluge, a University of Victoria philosopher and medical ethicist, has developed a proposal for amending Canada's Criminal Code to allow for euthanasia and assisted suicide.

A screening process would determine whether a person has the capacity to decide to end their lives if they are suffering from a "incurable and irremediable disease or medical condition."

In his model, an incurable psychiatric condition might conceivably qualify but the daunting prospect of a long stretch in prison would not be grounds to choose death.

"In a medical context the test is not whether you don’t feel like it [spending life in prison] but whether it causes diagnosable, irremediable, incurable harm," Kluge said in an interview.

"Therefore simply feeling 'I don’t like this' is certainly not going to be sufficient because what has to happen is that you would have to be medically or psychologically harmed by continuation and that is not the same as saying I’d die rather than spending 20 years.”

A Canadian law might look something like Quebec's Bill 51, which allows someone to request assisted dying only if they suffer from a serious incurable illness, their capabilities are in irreversible decline and are suffering unbearable physical or psychological pain as a result.

Even if the law were available for inmates (and presumably it will be in Quebec) it doesn't seem to leave much room for a Van Den Bleeken-style bid to end the torment of lifetime imprisonment, nor should it.

It a prisoner sees death as the only way out, there's something wrong with the system, said Latimer.

"I would caution that placing some person in such dire circumstances such that they suffer a deterioration of mental health and think that their only answer is to kill themselves really raises some questions, I think, about the appropriate role of the the person who’s detaining them," she said.

The suicide rate in Canadian prisons is seven times higher than in the general population, averaging about 10 a year in federal penitentiaries, according a review of suicides by the Office of the Correctional Investigator published last September.

"Suicide is the leading cause of un-natural death among federal inmates, accounting for about 20 per cent of all deaths in custody in any given year," the report says.

Stress of prison life growing

Long-term segregation (solitary confinement), inadequate mental-health services, increased overcrowding as the Conservative government's tough-on-crime strategy sends more people to prison, and for longer. They all add to the stresses of prison life, said Latimer.

"I would be very careful about teasing out the right to die with dignity with the issue of suicide in prison," Justin Piché, a University of Ottawa criminologist who specializes in issues of incarceration, said via email.

"Those who commit suicide in prison do so in a context where they are imprisoned.  Without being situated in that context, they would not necessarily engage in the same act."

If the state creates conditions where people contemplate killing themselves, then offer them euthanasia, it amounts to reinstitution of the death penalty, he said.

That means revisiting the policy of jailing people for long periods and the policy of segregation, which Correctional Investigator Howard Sapers questioned in his report, said Latimer.

“What we would say is you ought not to detain people in circumstances that are sufficiently cruel that death looks like a positive alternative," she said.

Deprivation of freedom and removal from society are supposed to be the punishment. The prison system itself is not supposed to exacerbate it, though undoubtedly some people think it should.

"Are we incarcerating people in circumstances that is amounting to a form of cruelty and undermining their mental health in such a serious way that they’re going to want to commit suicide?" asked Latimer.

"We really need to guard against being cruel. It’s one thing to deny people their liberty; it’s another thing to incarcerate them in a way that amounts to a form of cruelty.”

Kluge agrees. If the punishment drives people to wish for death, then change the punishment.

“If you have ways of dealing with that without doing away with the sentence, then clearly you have the obligation to do that," he said.