01 Jun Update on State of Law on Physician-Assisted Death in Canada (May 30, 2016) (Canada (Attorney General) v. E.F., 2016 ABCA 155 (CanLII))
by Brynna Hambly
Background and Case Summary
The Supreme Court of Canada in Carter v. Canada (Attorney General), 2015 SCC 5 (CanLII) (“Carter”) outlined a constitutional exemption to sections 241 and 14 of the Criminal Code of Canada, which made it illegal to assist a person in committing suicide. An earlier entry on this case can be found here. As expressed by the Court in Carter and summarized in Canada (Attorney General) v. E.F., 2016 ABCA 155 (CanLII), (“EF”) for an applicant to meet the constitutional exemption he or she must be:
 …1) a competent adult who 2) clearly consents to the termination of life and 3) has a grievous and irremediable medical condition (including an illness, disease, or disability that 4) causes enduing suffering that is intolerable to the individual in the circumstances of his or her condition.
In Carter, the Supreme Court gave the federal government 12 months to implement a new legislative scheme that permitted physician assisted death. The Court later granted the government a further 4 month extension before the relevant provisions of the Criminal Code of Canada would be deemed invalid (which expires June 6, 2016) (see link here for that decision).
During the 12 month suspension on the declaration of invalidity, individuals who wanted to access physician-assisted death were forced to apply to the courts for an exemption to the ban. Since Carter, there have been a few such applications, including: H.S. (Re), 2016 ABQB 121 (CanLII) and A.B. v Canada (Attorney General), 2016 ONSC 1912 (CanLII). Most recently, the Alberta Court of Appeal considered such an application in EF.
In EF, a 58 year old woman suffering from an illness, which caused severe uncontrollable muscle spasms sought and was granted an exemption to the ban on medical assisted death by Justice M.R. Bast of the Alberta Court of Queen’s Bench. E.F.’s condition was psychiatric in nature but was irremediable and so severe that effectively rendered her blind, unable to eat or move. She had full mental competency but she was not close to death.
The Attorneys General of Canada and of British Columbia (the jurisdiction where a physician who would assist her was located) appealed the decision on the basis that E.F. did not meet the Carter exemption because her condition was: 1) psychiatric in nature, 2) not terminal (and therefore her death not “reasonably foreseeable),” and 3) there was insufficient evidence to support her condition.
The Court of Appeal unreservedly rejected the government’s arguments, noting that the Supreme Court of Canada did not “explicitly or inferentially” exclude persons with psychiatric illnesses from accessing medical assistance in dying if they met the other criteria (para 59). Further, it said, the broad right described in Carter of “a grievous and irremediable medical condition could include conditions that are not life-threatening or terminal” (at para 28). The Court of Appeal also found the fact that E.F. had not been examined by a psychiatrist was not fatal to her claim, as the Government had argued. The expert psychiatric and medical evidence, along with the evidence of her long-time treating physician was sufficient to support her claim.
The government has introduced a new bill to accommodate the changes in the law brought about by Carter entitled Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), 42nd Parliament, 1st Session (as amended by the Standing Committee on Justice and Human Rights). However, the Bill has faced a number of delays. As of June 1, 2016, Bill C-14 has passed a third reading and has been forwarded to the Senate where it is likely to face amendments (see article here).
The Court of Appeal’s decision calls into question the constitutionality of Bill C-14 even prior to its passing into law. The Attorneys General presumably opposed E.F.’s application (and appealed the lower court’s decision) because the issues raised in this case squarely challenged the Government’s proposed stance on physician-assisted death in Bill C-14. Being aware of this, the Court of Appeal directly questioned the appropriateness of the federal government taking an adversarial role in an individual’s application for a court-ordered exemption to the ban on assisted death in order to further its own agenda. The Court of Appeal found that such applications were not meant to adversarial and the Court in Carter intended that courts, not governments, were to be the “gatekeepers” of exemptions until a new law is enacted (at para 71).
It is likely that Bill C-14 will not be passed prior to the June 6, 2016 deadline set by the Court. Even if it passes, there is little doubt that there will be further constitutional challenges. The decision of EF gives us a glimpse into the future of these constitutional challenges, most notably on the basis of its restrictiveness and the reasonable foreseeability of death requirement.
We will watch this topic with interest and monitor any developments as they arise.