Tag: public policy
Since the Supreme Court of Canada’s landmark decision in Carter v Canada (Attorney General) and the subsequent decriminalization of medical assistance in dying (“MAID”) in 2016, there has been considerable debate regarding the accessibility of MAID.
Currently, MAID is available only to individuals able to satisfy the following test (set out in the Criminal Code):
- they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;
- they are at least 18 years of age and capable of making decisions with respect to their health;
- they have a grievous and irremediable medical condition;
- they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
- they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.
The criteria do not feature any mechanism for providing advance consent to MAID. Similarly, an attorney or guardian of personal care cannot consent on behalf of the patient at the time of the procedure, once he or she loses the capacity to consent him or herself.
As it currently stands, an individual who qualifies for MAID must consent at the time of the procedure, before he or she may suffer from diminished mental capacity that compromises the patient’s ability to provide informed consent. In some cases, this has resulted in individuals accessing MAID before they otherwise may have chosen to do so to ensure that they would not be exposed to prolonged suffering during a subsequent period of incapacity, during which MAID would not longer be accessible.
Some individuals and groups, including Dying with Dignity Canada, argue that the laws regarding MAID should be amended to provide for the option of providing advanced requests for MAID.
According to a recent Toronto Star article (“No rush to change assisted-death law”, published on February 17, 2019), Justice Minister David Lametti has stated that MAID laws will not be updated in advance of a five-year parliamentary review in 2021 of how the current MAID regime is operating. At that time, it will no doubt be difficult in considering any changes to balance the rights of those with grievous and irremediable medical conditions to die with dignity on one hand, and the protection of individuals who are vulnerable and whose capable wishes can no longer be confirmed on the other.
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Section 241.1 of the Criminal Code sets out a detailed procedure for determining when medical assistance in dying can be provided. However, the medical and legal communities are still grappling with the application of the provisions.
In A.B. v. Canada (Attorney General), 2017 ONSC 3759 (CanLII), two physicians concluded that AB met the criteria for a medically assisted death. A third doctor, however, did not, as he felt that AB did not meet the Criminal Code requirement that a natural death was reasonably foreseeable. Although only two medical opinions are required, the opinion of the third doctor had a chilling effect on one of the other physicians, who declined to provide assistance to AB for fear of being charged with murder.
AB then applied to court for a determination that she met the requirements of the Criminal Code, and a declaration that she may receive medical assistance in dying.
Justice Perell, who had previously considered the issue of assisted death in another proceeding, heard the application.
Ontario and Canada took the position that a declaration should not issue, as the regime established by the Criminal Code does not require judicial pre-authorization. Further, the civil courts should not issue a declaration as such a declaration would interfere with the prosecutorial discretion of the Crown by predetermining criminal liability.
Justice Perell agreed with the position of Ontario and Canada. However, he felt that their position was “as unhelpful as it is technically correct.” The practical effect of such a position was that AB qualified for medically assisted death, but no physician was prepared to assist.
In his decision, Perell J. thoroughly reviews the legislative history of medical assistance in dying. He agrees that it is the medical practitioner and not the court that is to decide whether the Criminal Code criteria are satisfied. He agrees that the court cannot make the decision for them.
However, Perell J. expresses that some form of declaration would be “useful” and have “utility”.
Perell J. walks a fine line in his decision. He accepts that the court is not to make declarations that the Criminal Code criteria for assisted death are met: that must be done by the medical practitioner or nurse practitioner: s. 241.2(3)(a). What Perell J. does, however, is attempt to clarify what is meant by s. 241.(2)(d): the provision that requires the person to meet the criteria that “their natural death has become reasonably foreseeable”. As a matter of statutory interpretation, he declares that in AB’s case, AB’s natural death is reasonably foreseeable.
Perell J. cautions that in making a declaration, he is not conferring immunity on the physicians from prosecution. He also states that he is not finding that courts could or should grant pre-approvals for persons seeking medical assistance in dying. It is unclear as to whether this will provide much comfort to medical practitioners.
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The practice of injecting policy considerations into court decisions has long been a tenet of the Ontario judiciary. However, such considerations may arguably raise questions that go beyond the scope of the decision. Cotnam v Rousseau, 2018 ONSC 216, is one such case.
In Cotnam, the Court was tasked with determining whether a pre-retirement death benefit received by a surviving spouse was available to be clawed back into an Estate pursuant to section 72 of the Succession Law Reform Act (the “SLRA”). The Respondent took the position that section 48 of the Pension Benefits Act (the “PBA”) sheltered the death benefit from being clawed back given that she was the spouse of the Deceased. The Court disagreed and held that such benefits ought to be available for claw back in order to prevent irrational outcomes resulting from their exclusion.
In the context of the facts at play in Cotnam, the Court reasoned in favour of equity, in particular, to ensure a dependant disabled child of the Deceased was properly provided for. However, the Court’s reasons appear to gloss over a fundamental conflict between the SLRA and the PBA, a clash about which the estates bar might have appreciated some judicial commentary. Specifically, the Court held that the provisions of the SLRA ascribing pension death benefits as available to satisfy a claim of dependant’s relief ought to prevail over the PBA’s provisions sheltering them from claw back.
Section 114 of the PBA provides that, “[i]n the event of a conflict between this Act and any other Act […] [the PBA] prevails unless the other Act states that it is to prevail over [the PBA].” The SLRA, in contrast, is silent as to whether its provisions are to prevail over those of the PBA.
However, the Court’s reasons make no mention of the interplay between section 114 of the PBA and the equities of ensuring the dependant daughter in Cotnam was properly provided for. While we may opine on the fact that the outcome in Cotnam favours equity over rote statutory interpretation, the estates bar is left to grapple with the apparent inconsistency with the intention of the Ontario legislature, and whether it will affect similar decisions going forward. As of this date, no written decisions have yet interpreted Cotnam, nor has the decision been appealed. Accordingly, it may be some time before the impact of the decision, if any, is felt.
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Earlier this week, the controversy surrounding the estate of American real estate developer and multi-millionaire John Chakalos dominated the headlines.
Issues Surrounding Mr. Chakalos’s Estate
Mr. Chakalos, who left a sizeable estate, was found dead at his home in 2013. Pursuant to the terms of Mr. Chakalos’s Will, his daughter Linda was one of the beneficiaries of his estate. Linda went missing and is presumed dead after a boat carrying her and her son, Nathan, sank during a fishing trip.
According to media reports, Linda’s son Nathan was also a suspect in the death of his grandfather, but was never charged. Nathan has denied the allegations regarding his involvement in his grandfather’s death and his mother’s disappearance.
According to an article by TIME, Mr. Chakalos’s three other daughters have now commenced a lawsuit in New Hampshire wherein they have accused Nathan of killing his grandfather and potentially his mother. The plaintiff daughters have asked the Court to bar Nathan from receiving his inheritance from Mr. Chakalos’s estate.
Public Policy and the Law in Ontario
It is important to note that Mr. Chakalos’s grandson has not been charged in the death of Mr. Chakalos, and the allegations against him have yet to be proven. However, there have been similar cases in Ontario where the accused beneficiary has ultimately been found to have caused the death of the testator.
Generally speaking, in Ontario, a beneficiary who is found to have caused the death of the testator is not entitled to benefit from their criminal act. This common law doctrine, often referred to as the “slayer rule,” stands for the proposition that it would be offensive to public policy for a person to benefit from the estate of a testator if the Court concludes that they have caused the death of the testator.
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Umair Abdul Qadir