The first provincial application under this exemption was Re HS in February 2016, where the motion judge described her role in such an application,
 … The role of this Court is limited to applying or authorizing an existing constitutional exemption and determining whether a particular person qualifies for that exemption…
The process for doing so would be to apply the criteria enunciated by the Court in the 2015 Carter decision at para 127 to a a competent adult person as someone:
- who clearly consents to the termination of life; and
- has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.
The Court continued to clarify that “irremediable” does not necessarily require a patient to receive treatment against their consent.
Since that time, there have been about 20 successful Carter applications across Canada since February, none of which were contested by the Crown. The first to be opposed was in April, in Canada (Attorney General) v E.F., where the motions judge still granted the application on May 5, 2016.
The basis of the Crown’s objections were:
- the applicant’s illness, however severe, is not regarded as terminal; and
- the applicant’s illness has at its root a psychiatric condition.
The Applicant’s condition was described as a “severe conversion disorder”, with involuntary muscle spasms causing her severe and constant pain and migraines. She was effectively blind from spasms in her eyelids, and was unable to eat for up to two days at a time due to her digestive problems. The effect of the condition was a significant impact on her quality of life, including muscle wasting and the need for a wheelchair. The competence of the patient to make this decision was not in dispute.
The Alberta Court of Appeal heard an expedited appeal, which was released this week, where they addressed two issues:
- does the constitutional exemption granted in Carter 2016 apply only to applicants whose medical conditions are terminal?; and
- are those persons suffering psychiatric conditions and who otherwise comply with the criteria in Carter 2015 similarly excluded from the ambit of the constitutional exemption?
The Court of Appeal referred to legislative backgrounder by the Canadian government, which on page 29 addresses whether the constitutional declaration made in Carter would apply outside of those with terminal illnesses.
Paragraph 127 of Carter appears to confer a broad right when read in isolation, and the definition of “grievous and irremediable medical condition” includes those that are not terminal or life threatening. The focus of the declaration was on the suffering of the person based on their s. 7 Charter rights.
The backgrounder states that a broader reading of the decision actually confers a more limited right, based on the factual circumstances of the parties in that case. The Court makes reference to the applicant and others who are “like her,” using her medical situation as a comparator in several locations in the decision. The Court also analyzed the evidence of assessment within the context of end of life decision making, including palliative care and life sustaining medical equipment.
The biggest argument for a more narrow interpretation of the Carter declaration is judicial deference to Parliament to craft a constitutionally compliant mechanism, in particular because there are competing values of great importance.
The Court of Appeal upheld the motions judge decision on all of these points, and rejected these submissions. They referred to the first paragraph of the Carter decision:
 It is a crime in Canada to assist another person in ending her own life. As a result, people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.
The Court of Appeal referred to the important interest at stake to hold against reading in or inferring additional limitations beyond what the Supreme Court of Canada stated at para 127 in Carter. They then examined whether the Carter declaration excluded medical conditions which had its origins in a psychiatric condition.
Although the Carter declaration in para 127 does not explicitly exclude those with mental illnesses, the Crown referred to para 111 of the decision to suggest that they were excluded by the Court:
 Professor Montero’s affidavit reviews a number of recent, controversial, and high-profile cases of assistance in dying in Belgium which would not fall within the parameters suggested in these reasons, such as euthanasia for minors or persons with psychiatric disorders or minor medical conditions. Professor Montero suggests that these cases demonstrate that a slippery slope is at work in Belgium. In his view, “[o]nce euthanasia is allowed, it becomes very difficult to maintain a strict interpretation of the statutory conditions.”
The Court of Appeal rejected this argument, finding this passage as part of a larger analysis employed by the Court in reviewing practices in other countries. They upheld the motions judge decision that persons with a psychiatric disorders could also avail themselves of this right, if they are both competent and clearly consent. The constitutional exemption was granted as a result to this applicant.
The concern around vulnerable populations will continue once the new legislation is in place. Bill C-14 is largely silent on minors and those with psychiatric illnesses. Of greater scrutiny is the the applicability to non-terminally ill applicants.
The proposed section 241.2 (1)(c) of Bill C-14 establishes the eligibility for medical assistance in dying only to those who have a “grievous and irremediable medical condition.” Unlike the Carter decision itself, the Bill then defines what this means in the proposed section 241.2(2) as follows:
(2) A person has a grievous and irremediable medical
condition only if they meet all of the following criteria:
(a) they have a serious and incurable illness, disease or disability;
(b) they are in an advanced state of irreversible decline in capability;
(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
Jennifer Gibson, Director of the University of Toronto Joint Centre for Bioethics, has stated that this “reasonably foreseeable” term,
…departs materially from Carter, which did not require a patient to be dying or approaching “natural death” in order to be eligible for medical assistance in dying. In clinical practice, there is often considerable uncertainty about prognosis, which renders ‘reasonable foreseeability’ another unhelpfully vague concept.
The legislative background provides this explanation for the qualifier:
The criterion of reasonable foreseeability of death is intended to require a temporal but flexible connection between the person’s overall medical circumstances and their anticipated death. As some medical conditions may cause individuals to irreversibly decline and suffer for a long period of time before dying, the proposed eligibility criteria would not impose any specific requirements in terms of prognosis or proximity to death (e.g., a six month prognosis as the U.S. states’ medical assistance in dying laws require).
The medical condition that is causing the intolerable suffering would not need to be the cause of the reasonably foreseeable death. In other words, eligibility would not be limited to those who are dying from a fatal disease. Eligibility would be assessed on a case-by-case basis, with flexibility to reflect the uniqueness of each person’s circumstances, but with limits that require a natural death to be foreseeable in a period of time that is not too remote. It should be noted that people with a mental illness or physical disability would not be excluded from the regime, but would only be able to access medical assistance in dying if they met all of the eligibility criteria.
Most individuals experiencing the type of suffering contemplated in Carter and addressed here in E.F. would invariably have some form of serious medical condition. Because the “foreseeable death” is understood here as entirely distinct from the diagnosis, it’s not entirely clear why it is even included here as a requirement.
If Carter is about cruelty, then perhaps it is even more cruel to deny this relief for individuals who do not have a terminal illness and may suffer for an even longer, and unknowable quantity of time. Bill C-14, should it become law, will invariably require further judicial interpretation, perhaps attempting to quantify the amount of suffering experience, and the reasonableness of any delay before a foreseeable death.
This would appear to be the exact type of judicially created “complex regulatory regimes” that the Supreme Court of Canada was trying to avoid at para 125 of Carter. As health services, including physician assisted dying, will invariably be implemented provincially, we can only hope that a more detailed legislative framework is imposed on top of the exemptions to the Criminal Code proposed by the Federal government.