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
A private member’s bill that would decriminalize medical practitioners assisting with suicide is about to get its first reading in the House of Commons.
Bill C-384 would amend sections 222 (homicide) and 241 (assisted-suicide) of the Criminal Code. Currently, these provisions criminalize (or confirm the criminal liability of) medical practitioners who participate in patients’ suicides by providing their services. Bill C-384 would create an exception to criminal liability for medical practitioners if prescribed elements were met: patients would have to be 18 years of age, suffer from a terminal illness or be in severe pain without prospect of relief (though a patient who refuses pain-killers still qualifies), provide 2 written consents to die "while appearing to be lucid" at least 10 days apart, and provide a written designation of another person to act on his or her behalf if he loses lucidity.
The phrase "while appearing to be lucid" rings alarm bells off their walls. The test implies a very low capacity threshold by comparison to say, testamentary capacity, but does not deliberately fit anywhere identifiable on the capacity threshold scale. From a estates law perspective, there is no requirement in the bill that medical practitioners consult personal care guardians or attorneys before going about their business. There is no requirement for a guardian or attorney to even consider these issues, but such legal possibilities might dramatically complicate the duties and obligations of a guardian or attorney.
From this quick analysis, this bill appears to have been written without input from the estates bar (which is unsurprising – it is the first reading of a private member’s bill in a criminal law matter in federal jurisdiction). This is a good example of how broad the estates/capacity field is and the potential effects of developments in other areas of law on estates/capacity law.
Have a great day, and enjoy every day you get,
Christopher M.B. Graham – Click here for more information on Chris Graham.