Alberta court decision on doctor-assisted death creates political tremors

Assisted-death bill expected to be put to final vote in the Commons by the end of this week

OTTAWA — A decision from the Alberta Court of Appeal created political shock waves in Ottawa on Wednesday after three judges found the federal government is flouting last year’s Supreme Court of Canada ruling on doctor-assisted death.

The judgment, handed down on Tuesday, said the government’s proposed legislation on assisted death does not comply with the high court’s landmark decision because it excludes people suffering solely from psychiatric conditions.

In setting out the parameters for an assisted death, the appeal judges noted the top court did not “require the applicant to be terminally ill to qualify.”

“The decision itself is clear,” the ruling said. “No words in it suggest otherwise. If the court had wanted it to be thus, they would have said so clearly and unequivocally. They did not.”

The findings had Justice Minister Jody Wilson-Raybould on the defensive on Wednesday, saying the Alberta decision makes her “fearful” about what could result if legislation is not in place by the Supreme Court’s deadline next month.

She also declined to say if the government will appeal the decision.

“We could, without legislation in place on June 6, be in an environment where there is no ability for a person to go to a Superior Court judge and get an exemption,” Wilson-Raybould said.

The minister’s comments did not sit well with Grace Pastine, the litigation director for the B.C. Civil Liberties Association — the group that worked on the historic case that led to the top court’s ruling in February 2015.

If there is no law by June 6, there will no longer be a need to seek an exemption and medically assisted death will be regulated under provincial health laws, Pastine said.

“Frankly, I am shocked that the minister made this statement,” Pastine said. “It’s completely off-base.”

The judicial smackdown and the political fallout, comes as the federal government is trying to persuade MPs and senators that its new law both complies with the Supreme Court’s findings and the Charter of Rights and Freedoms.

The bill is expected to be put to final vote in the Commons by the end of this week.

Murray Rankin, the NDP’s justice critic and a public law expert, said he finds it absolutely “absurd” the government is not willing to change its legislative course based on Alberta court ruling.

“We just heard … the Court of Appeal saying ‘You got it wrong’,” he said. “What else do you need to know?”

Tuesday’s ruling involved the case of an Alberta woman, known only as E.F., who applied last month for a judicial exemption to the ban on medical assistance in dying.

Such exemptions were allowed by the top court in January when it gave the federal government until June to come up with a new law recognizing the right to an assisted death for clearly consenting adults with “grievous and irremediable” medical conditions who are enduring suffering that they find intolerable.

The appeal court summary of the cases said E.F. is effectively blind, her digestive system is ineffective and she goes without eating for up to two days at a time; her “quality of life is non-existent.”

E.F. attested she is not depressed or suicidal but “simply exhausted after years of suffering indescribable pain.” Her doctor and three other physicians, including a psychiatrist with expertise in the condition, said E.F. is fully competent and that there is no remedy for her condition.

An Alberta Court of Queen’s Bench judge granted E.F. an exemption on May 5. However, the federal government appealed the decision, as did the government of British Columbia, where E.F. had arranged for a doctor to help her die.

The federal government contended that when the Supreme Court struck down the ban on medically assisted death, it did so only for persons near the end of life and precluded those suffering strictly from psychiatric conditions.

In making its case, the government used the same rationale it has given for its proposed new law, which would make assisted death available only for clearly consenting adults “in an advanced stage of irreversible decline” from a serious and incurable disease, illness or disability and for whom a natural death is “reasonably foreseeable.”

According to the summary, the government acknowledged that the Supreme Court did not expressly limit its ruling to those with terminal illnesses or expressly preclude those with psychiatric conditions.

Nevertheless, the government pointed to other parts of the ruling which specified it was intended to respond to the factual circumstances of the case of Gloria Taylor — one of the plaintiffs, who was suffering from amyotrophic lateral sclerosis, a terminal illness — and was to apply to people like her.

It also argued the top court compared medical assistance in dying to forms of “end of life” care that are available only to the terminally ill.

The appeal court rejected the federal argument, saying it “is not supported by the words of the (Carter) decision as a whole, nor by the principles articulated in the decision.”

“Given the importance of the interests at stake, it is not permissible to conclude that certain people, whose circumstances meet the criteria set out in the Carter 2015 declaration and who are not expressly excluded from it, nevertheless can be inferentially excluded,” the panel of judges said.

The appeal court was particularly dismissive of the federal argument that the Supreme Court’s references to “end of life” care suggest it intended to limit the right to assisted dying to the terminally ill.

As for precluding those suffering solely from psychiatric conditions, the appeal court said the federal government took portions of the Supreme Court ruling out of context.

“Persons with a psychiatric illness are not explicitly or inferentially excluded if they fit the criteria” laid down by the Supreme Court, the appeal court judges concluded.