A further look into the controversial topic of physician assisted death in Canada.

By: Hailey Burkitt

Since the Carter v. Canada (Attorney General), [2015] 1 SCR 331, 2015 SCC 5 (CanLII) decision to suspend the declaration of constitutional invalidity relating to physician assisted death in 2015, the suspension has been extended until June of 2016. While Parliament discusses the issue, the rest of Canada has been debating the same.  The debate continues and as new things come to light, the debate heats up.

In late 2015 Quebec applied for, and was granted, an exemption from the suspension and passed its own assisted dying law. This assisted dying law was enacted in December of 2015. The first case of approved assisted dying took place in January 2016 and there have been approximately 20 cases in Quebec to date.

The end of February of 2016 marked the first legal physician assisted death in Canada outside Quebec as a Calgary woman received a court order to have the procedure completed. She passed on her own accord with the assistance of a British Columbia physician, marking a historic day for Canada.  Currently, the first Ontario case is going before the courts: an 80 year old man with advanced lymphoma. It is yet to be seen what will happen in that situation.

The application requirements for assisted death are given through the Carter case. Along with the Notice of Application and service requirements, there are a number of affidavits required. The first is an affidavit from the applicant seeking the assisted death. This affidavit must include information about the applicant including their medical condition, in depth reasoning why they are seeking the assisted death and the manner, means and timing of the assisted death being sought.

This puts the responsibility on the individual to not only decide to have the procedure done but why, how, when and where. It is not enough to simply decide they do not want to suffer in pain anymore. The person is forced to really contemplate the decision and the consequences of it. They have to not only decide that they want it done, but they have to put significant work into convincing the court of why it should be done.

The required affidavits include one from the applicant’s attending physician, one from a consulting psychiatrist and finally, one from the physician who is to actually assist with the death. Each of these affidavits must include information on the applicant’s medical condition, the applicant’s ability to make a clear, free and informed decision about the procedure, that the applicant understands the consequences of assisted death and that they understand the choice remains theirs until the last moment.

The final of the four affidavits appears to be the hardest to obtain as not many physicians are willing to perform the procedure. Take the Calgary woman mentioned earlier. Though the Calgary courts awarded the order, she had to go to British Columbia to find a physician who would perform the procedure.

As Parliament continues to debate this matter, and cases in Canada come forward, the landscape of the topic is changing.  As more and more cases come before the courts and more orders approving the procedure are granted, a string of case law and precedents are being created.  The use of case law and precedents is the fundamental backbone of the common law legal system. The ability to look at what has already been decided, what has already worked, and apply that to another situation, is how the legal system functions.

One could almost wonder if Parliament is taking that into consideration when prolonging the decision, in hopes that the decision will work itself out through the courts, taking the pressure off the Government.

Regardless, this is something to watch as the body of case law develops.