On March 17, 2016, the Honourable Justice Perell of the Ontario Superior Court of Justice rendered his decision in A.B. v Canada (Attorney General), 2016 ONSC 1912, the first Application in Ontario for a declaration with respect to the constitutional exemption for a physician-assisted death.
As we had previously blogged, the Supreme Court of Canada released a landmark decision on February 6, 2015, declaring that the prohibitions against physician-assisted death in the Criminal Code violated the Charter of Rights and Freedoms. The Court suspended its declaration that sections 241(b) and 14 of the Criminal Code were of no force and effect for a period of 12 months, and the deadline was set to expire on February 6, 2016.
The Attorney General of Canada subsequently sought an extension of the suspension. In its January 2016 decision in Carter v Canada, 2016 SCC 4, the Supreme Court granted a four-month extension. However, a majority of the Court also granted a constitutional exemption for individuals who met the legal criteria set out in Carter v Canada and who wished to exercise the right to physician-assisted death during this interim period. The Alberta Court of Queen’s Bench rendered the first decision with respect to such an Application for a personal exemption on February 29, 2016 in Re H.S., 2016 ABQB 121, which was discussed here.
In response to the Supreme Court’s decision, the Ontario Superior Court of Justice published Practice Advisory – Application for Judicial Authorization of Physician Assisted Suicide. The practice advisory provides guidance on the procedural steps for such an interim Application.
In A.B. v Canada, the Applicant was an 81-year-old man who was diagnosed with advanced-stage aggressive lymphoma in 2012. After treatment failed to cure the cancer, A.B. decided to begin palliative oral chemotherapy in 2013.
The palliative care helped manage A.B.’s symptoms and pain until the end of 2015, when A.B.’s pain began to worsen. A radiation oncologist prescribed radiation, and A.B. came under the care of a palliative care physician. A.B.’s hematologist, who had been his treating physician since 2012, provided a worsening prognosis and a life expectancy of less than three months.
A.B.’s Application was supported by affidavit evidence from A.B. himself, his wife, his daughter, his hematologist, his palliative care physician and a geriatric psychiatrist. The geriatric psychiatrist performed a capacity assessment and insight, judgment and cognition assessments on A.B., and provided an opinion that A.B. had the capacity to make a decision regarding physician-assisted death. The Attorney General of Canada and Attorney General of Ontario took no position on the Application.
The Court also reviewed an exchange of correspondence with the Chief Coroner of Ontario, with respect to an ancillary request for a declaration that the physicians providing physician-assisted death not be required to notify the coroner of the circumstances of the death pursuant to the Coroners Act. On this issue, Justice Perell granted a declaration that the coroner did not need to be notified of A.B.’s death.
After reviewing the evidence, Justice Perell concluded that A.B. had satisfied the criteria set out at paragraph 127 of the Supreme Court’s 2015 decision in Carter. Justice Perell held that A.B. was a competent adult person who had a grievous and irremediable medical condition. Justice Perell also held that A.B.’s condition was causing him to suffer enduring intolerable suffering which could not be alleviated by any treatment available to him that he found acceptable, and that A.B. clearly consented to the termination of his life.
Accordingly, the Court granted a declaration that A.B. had satisfied the criteria for the constitutional exemption that was granted in the Supreme Court’s recent decision.
Thank you for reading,
Umair Abdul Qadir