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Judge’s ruling offers guidance on tough topic
By Cristin Schmitz
March 18 2016 issue

The first Canadian judgment to culminate in a physician-assisted death provides help to judges and lawyers across the country on the analysis, evidence and process for Carter applications — topics on which various court protocols and attorneys general diverge.

Notably also, Alberta Queen’s Bench Justice Sheilah Martin remarks that some of the guidelines in the practice advisories for Carter applications published recently by the chief justices of the Ontario Superior Court and B.C. Supreme Court (which differ between themselves) “are broader and more onerous” than how she reads the requirements set out by the Supreme Court in Carter v. Canada (No.1) [2015] SCC 5.

For example, in contrast to the B.C. trial court (and the physician-controlled regime Quebec has set up for medical aid in dying), the Ontario Superior Court says that Carter applicants “should” supply affidavit evidence from a psychiatrist — evidence Justice Martin deemed unnecessary in the specific case of applicant H.S., a retired psychologist in the final stages of ALS, whose treating physician, family and best friend confirmed was competent and not depressed when she asked for a physician-assisted death.

“Nowhere in the Supreme Court’s decision is there a requirement for psychiatric evaluation,” Justice Martin said, noting that the top court doesn’t prescribe what type or amount of evidence will satisfy the prerequisites for a physician-assisted death specified in para. 127 of Carter 1. “As such, it becomes a matter for the motions judge to make the determination, based on evidence he or she considers sufficient.”

Counsel for H.S., Olivier Fuldauer of Courtney Aarbo Fuldauer in Calgary, said he sees “a bit of a constitutional glitch” in the Ontario Superior Court’s practice advisory on seeking judicial authorization for a physician-assisted death.

He pointed to para. 10(e) which stipulates that the application record “should” contain affidavit evidence from the applicant’s attending physician that addresses “whether the applicant is, or will be, physically incapable of ending his or her life without a physician-assisted death.”

“I don’t think it should be in the checklist of stuff that people have to address, because that implies that it has some bearing on the application, and I don’t think it should,” Fuldauer said. “I think it’s incorrect that an applicant has to be able to demonstrate that she’s incapable of killing herself, or will lose the capacity to kill herself. That was an argument that was disposed of” by the Carter trial judgment.

Fuldauer said that if people were to be excluded from physician-assisted death on the basis that they are physically capable of killing themselves it would offend Carter and the Constitution. “My issue with that is the right to liberty, which is protected by s. 7 of the Charter, includes what the Supreme Court says in paras. 66 and 67 of [Carter 1], and it includes the right to request…a physician’s assistance in dying…and the right to decide one’s own fate,” he explained. “My personal view is that forcing people to kill themselves infringes that — if we say ‘Stick your head in the oven, or use a shotgun,’ or whatever it is. But that’s not what the [Carter] decisions say.”

Health law practitioner Lisa Corrente of Toronto’s Torkin Manes said issues highlighted in the H.S. ruling raise questions “regarding whether it will be more challenging for Ontario applicants to meet the Carter criteria for a constitutional exemption.”

“Ontario appears to be the only province within Canada that suggests including evidence from a psychiatrist in the application,” she noted by e-mail. “The British Columbia protocol requires affidavits from the applicant and two physicians. The Quebec legislation does not require any affidavit evidence. In H.S., the court held that it was entitled to take a ‘flexible approach’ to the evidence in that kind of application, and accepted two affidavits sworn by the applicant attaching letters from physicians as exhibits. Further, given our practice advisory’s suggestion that the application include psychiatric evidence, a question arises as to whether Ontario courts will consider depression as part of determining the applicant’s competence.”

Corrente said access to justice is an issue in applications for physician-assisted death. “If Ontario proceedings will be more onerous and complex, it raises concerns about legal costs becoming too prohibitive for some applicants and their families.”

Justice Martin’s judgment authorizing H.S.’s doctor-assisted death came down Feb. 29 (five days after the hearing): HS (Re) [2016] ABQB 121. The judge held that H.S. met all the Carter criteria, as a competent adult who clearly consented to her life’s termination because she was enduring intolerable suffering from a grievous and irremediable medical condition that could not be alleviated by any treatment acceptable to her.

The Calgary woman died that evening, having travelled to Vancouver because she couldn’t find a willing local doctor. Carter applications are in the works elsewhere, including Ontario.

For judges faced with applications outside Quebec (the only province where obtaining medical aid in dying does not necessitate going to court), Justice Martin provides the first interpretation, and application, of the substantive requirements for obtaining a physician-assisted death set out by the Supreme Court in Carter 1.

Justice Martin also makes an important point that some other judges may not agree with: i.e. people who go to court seeking a doctor-assisted death are not asking for personal constitutional exemptions from the Criminal Code’s blanket ban on assisted suicide; rather they are seeking a judgment stipulating that they, as individuals, meet the criteria for physician-assisted death set out by the Supreme Court in para. 127 of Carter 1.

This matters because applying for a (rarely granted) personal constitutional exemption would seem to call for a full-blown Charter inquiry into whether the individual had established a case — including a Charter balancing exercise requiring the participation of attorneys general and others affected, possibly interveners.

The B.C. Supreme Court’s Feb. 25 advisory practice note, however, is titled “Notice regarding applications for exemption from the Criminal Code prohibition against physician-assisted death.” The notice states it is “intended to provide guidance to counsel and parties who intend to bring an application to the Supreme Court of British Columbia for an exemption from the Criminal Code prohibition.”

Yet according to Justice Martin the Supreme Court has already granted a personal constitutional exemption to all those who meet the Carter criteria. It did so in January when it issued Carter v. Canada (No. 2) [2016] SCC 4, giving Parliament five extra months (until June 6) to come up with a legislative response to the blanket assisted-suicide ban the court struck down.

Citing para. 6 of Carter 2, Justice Martin explained “the court was not merely saying a person could apply to a court for a personal constitutional exemption, pending Parliament’s response. Rather, they were granting that remedy immediately to those adults who have a grievous, intolerable and irremediable medical condition. The role given to authorizing courts is to hear individual applications and determine whether a particular claimant is inside or outside the group which has already been granted the constitutional exemption. The judicial task of the authorizing court is therefore limited to determining whether particular claimant satisfies the terms of para 127” of Carter 1.

The judge went on to provide guidance on the types and amount of evidence that may be necessary to support a Carter application (which varies with the individual cases), as well as on the process to be used (about which the Supreme Court said nothing). Among other things, she commented on whether notice should be given to attorneys general or third parties, considerations of confidentiality and open courts; and how to determine competence.

The judge did not accept the argument of the attorney general of B.C. that her order should require H.S.’s competence to be re-established at the time the applicant chose to avail herself of a doctor’s help to die. She said this was unnecessary given that H.S. planned to avail herself soon of a doctor-assisted death, and at that time the attending doctor would be obliged in the ordinary course to “obtain genuine, ongoing and informed consent to treatment.”

On the issue of notice, Justice Martin indicated that requirements may vary depending on the case. She noted that notice in the case was given to the attorneys general of Canada, B.C. and Alberta. The Ontario and B.C. court protocols also require notice to the federal attorney general and the relevant provincial attorneys general.

The federal attorney general did not respond; Alberta’s attorney general took no position, but sent a lawyer to the hearing; and the B.C. attorney general wrote to H.S.’s counsel and asked her lawyer to bring comments and suggestions to the court’s attention (which form part of the court record).

Justice Martin agreed there was “some merit” to H.S.’s argument that notice to the attorneys general was merely a courtesy, as the Supreme Court dealt fully with the constitutional dimension of the case by granting the constitutional exemption in Carter 2.

“However, there is practical merit to providing notice to allow the attorneys general the opportunity to make submissions in the public interest,” Justice Martin observed. “The comments of the attorney general of B.C. in the case at bar supported a more complete consideration of the issues.”

No notice was required to H.S.’s family members who live outside Canada, the judge said. The applicant gave evidence that she had informed those close to her of her plans, and her spouse and best friend were both in court with her.

Click here to see this article in our digital edition (available to subscribers).