Tag: Carter v. Canada
Mary Kills People is a brand new Canadian television show starring Caroline Dhavernas. Mary Kills People is a fictional show which centers around Dr. Mary Harris, an ER doctor who engages in assisted suicide. The series premier took place on January 25, 2017. According to this Toronto Star interview with the show’s writer, Tara Armstrong, Tara came up with the idea for the show while she was at the University of British Columbia.
As you may be aware from our blog, by reasons dated February 6, 2015, the Supreme Court of Canada found the criminal code prohibitions against physician assisted suicide to be unconstitutional. This landmark decision originated in proceedings before the British Columbia Supreme Court. In 2011, the Plaintiffs in Carter v. Canada (Attorney General), amongst other evidence, put forth 13 affidavits from individuals who wished to have the option of assisted suicide. The Plaintiffs also sought to admit additional witness evidence, on an anonymous basis, from a person called “L.M.” who swore an affidavit which set out the circumstances in which his terminally ill father had ended his own life with the help of his physician and how L.M., his sister, and his sister’s physician assisted L.M.’s terminally ill mother in ending her life. In an order to protect L.M.’s identity the Plaintiffs’ also sought procedural relief which would allow L.M. to be cross-examined and/or testify behind a screen. However, this relief was rejected by the Hon. Madam Justice Smith at first instance and L.M.’s evidence was not a part of the trial record. See Carter v. Canada (Attorney General),  B.C.J. No. 1897, for this particular evidentiary ruling.
While I have not seen the show (yet), and I am not aware of the inspiration or research behind the show, it will be fascinating to see if and how the role of the Courts and judicial reform will be featured on Mary Kills People.
Click here for the Season 1 teaser of Mary Kills People.
Happy reading (and watching)!
The issue of medically assisted death attracted a lot of attention in 2016. We blogged on the topic several times.
The federal Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) received Royal Assent in June 2016. The federal legislation has been criticized for being too restrictive. The British Columbia Civil Liberties Association has indicated it plans to challenge the constitutionality of the federal legislation.
The government of Ontario recently proposed legislation to complement the federal legislation. Some highlights of the proposed Medical Assistance in Dying Statute Law Amendment Act include:
- Patients must be competent adults over the age of 18 and suffer from incurable conditions or face a reasonably foreseeable natural death to qualify for physician-assisted death.
- All physician-assisted deaths must be reported to the Coroner, who may then choose whether or not to investigate the death.
- Physicians and nurse practitioners are not liable for any act or omission made in good faith in performing a medically-assisted death.
- Insurance and workplace compensation benefits cannot be denied to people for choosing medically assisted death.
The Medical Assistance in Dying Statute Law Amendment Act has only passed the first reading stage and may change as it is subject to second and third readings. The provincial legislature will not debate the bill again until February, when the legislature reconvenes after winter break.
Thank you for reading.
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Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), continues to wind its way through the legislative process. The Bill is the federal government’s proposed new law regarding physician-assisted death, in response to the Supreme Court of Canada’s decision in Carter v Canada. The Bill was passed by the Senate on June 15, 2016 with several amendments. Yesterday, Members of Parliament in the House of Commons voted 190 to 108 in favour of the Bill, and sent it back to the Senate.
As we have previously blogged, the Supreme Court of Canada’s landmark decision in Carter v Canada declared that the prohibition against physician-assisted death in the Criminal Code violated the Charter of Rights and Freedoms.
However, in order to provide the government with sufficient time to enact a law that would pass constitutional muster, the Court suspended its declaration that the relevant sections of the Criminal Code were of no force and effect for a period of 12 months. The deadline was set to expire on February 6, 2016.
The Supreme Court subsequently granted a further four-month extension, which was set to expire on June 6, 2016. However, the Court granted an exemption for individuals who wished to exercise the right to physician-assisted death during this interim four-month period, holding that “they may apply to the superior court of their jurisdiction for relief in accordance with the criteria set out in para. 127 of our reasons in Carter.”
In response, the Ontario Superior Court of Justice published a practice advisory that provided guidance on the procedural steps for such an interim application. However, upon the expiry of the Supreme Court’s suspension of its declaration on June 6, 2016, and in the absence of enacted federal legislation, it was unclear if individuals seeking access to a physician-assisted death still had to bring an application before the Ontario Superior Court of Justice for such relief.
As of June 6, 2016, the Ontario government’s website stated that assisted death was legal in Canada, “as long as the criteria set out in the Supreme Court of Canada’s decision are met.”
The government’s website also stated that, while it was not required by the Supreme Court of Canada, patients and healthcare professionals were encouraged “to seek further clarity and certainty about how the Supreme Court’s decision applies to their particular circumstances by bringing an application to the Ontario Superior Court of Justice.”
However, in a decision rendered on June 15, 2016, the Ontario Superior Court of Justice held that judicial authorization is still required in the absence of a federal law.
The Honourable Justice Paul Perell, who had previously rendered the first decision regarding physician-assisted death in Ontario pursuant to the Superior Court of Justice’s interim practice advisory, has held that those seeking a physician-assisted death must still bring an application until the federal legislation is passed.
Given Justice Perell’s recent decision, although physician-assisted death is technically legal in Canada, individuals and healthcare providers in Ontario would be well-advised to consult with a lawyer and bring an application for judicial authorization before making end-of-life decisions.
Thank you for reading,
Umair Abdul Qadir
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
As lawmakers continue to formulate a legislative response on the issue of physician-assisted death, the Ontario Superior Court of Justice has released a practice advisory for interim applications seeking judicial authorization.
As my colleague Lisa Haseley recently noted on this blog, the Supreme Court of Canada suspended the declaration that sections 241 and 14 of the Criminal Code were of no force and effect for a period of 12 months, and the one-year deadline was set to end on February 6, 2016. The Attorney General of Canada subsequently sought a six-month extension of the suspension. In its decision in Carter v Canada, 2016 SCC 4, released on January 15, 2016, the Court granted a four-month extension in light of the recent federal election.
However, a majority of the Court also granted an exemption for individuals who wish to exercise the right to physician-assisted death during this interim four-month period, holding that “they may apply to the superior court of their jurisdiction for relief in accordance with the criteria set out in para. 127 of our reasons in Carter.”
On January 29, 2016, 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 for judicial authorization.
The practice advisory states that the application must be commenced by Notice of Application, pursuant to Rule 14 of the Rules of Civil Procedure. The applications would be heard no earlier than fifteen days and no later than thirty days after the application is commenced, but certain applications can be heard on an emergency basis.
The Notice of Application must be served on the Attorney General of Canada and the Attorney General of Ontario, and may need to be served on the applicant’s family members and “any other person who will be affected by the order sought” depending upon the individual circumstances of the applicant. The applicant must serve and file an application record and factum at least seven days before the hearing, and the respondents shall serve and file a factum and respondent’s application record at least four days before the hearing.
In addition to highlighting the evidence that should be included in the applicant’s affidavit, the practice advisory provides guidance on the affidavit evidence required from the applicant’s attending physician, consulting psychiatrist and the physician proposed to assist death (who may also be the attending physician).
Any Ontario parties or counsel seeking an exemption should carefully review both the practice advisory and the Supreme Court’s 2015 decision in Carter. The practice advisory notes that while it includes references to the types of evidence discussed in the decision, “the onus rests with the applicant to confirm and meet the evidentiary requirements set out in Carter (2015).”
Thank you for reading.
Umair Abdul Qadir
Today on Hull on Estates, Andrea Buncic and Noah Weisberg discuss the recent Supreme Court of Canada decision of Carter v. Canada and its relevancy to estate planning issues.
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