OTTAWA — The federal government’s rationale for a restrictive approach to medically assisted dying has been shot down in flames by the Alberta Court of Appeal, even before its controversial legislation is put to a vote in the House of Commons.
A panel of three appeal court judges says the government is flouting last year’s landmark ruling by the Supreme Court when it argues that assisted dying should apply only to those who are close to death.
It’s also not complying with the top court’s ruling, known as the Carter decision, when it excludes people suffering solely from psychiatric conditions, the judges say.
The judicial smack-down comes at a particularly inopportune moment for the federal government, just as it is trying to persuade MPs and senators that its restrictive new law on assisted dying complies with the Supreme Court’s ruling and with the charter of rights.
The bill is expected to be put to final vote in the House of Commons, where MPs are being allowed a free vote, by the end of this week.
The judicial spanking came in a ruling Tuesday on 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 an extra four months — until June 6 — to come up with a new law that recognizes the right to an assisted death for clearly consenting adults with “grievous and irremediable” medical conditions who are enduring suffering that they find intolerable.
E.F. is a 58-year-old woman who endures chronic and intolerable suffering due to a psychiatric condition known as “severe conversion disorder.” She suffers from involuntary muscle spasms that cause her severe and constant pain and migraines.
According to the appeal court summary of her case, E.F.’s eyelids have spasmed shut, rendering her effectively blind, her digestive system is ineffective and she goes without eating for up to two days at a time. She can no longer walk and is confined to a wheelchair; her “quality of life is non-existent.”
E.F. attested that 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, attested that E.F. is fully competent and that there is no remedy for her condition, from which she has suffered for nine years.
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 as a violation of a person’ charter right to life, liberty and security of the person, 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 rational 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 appeal court’s summary of the federal argument, 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 top court ruling which specified that 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 that 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.
“It is not appropriate, in our view, to revisit these issues, which were considered at length and decided by the Supreme Court in Carter 2015.”
In setting out the parameters for an assisted death, the appeal judges noted that the Supreme Court did not “require the applicant to be terminally ill to qualify.”
“The decision itself is clear. 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 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.
“Physician assisted death is about terminating one’s life, ergo the comparison to ‘end of life care.”’
As for precluding those suffering solely from psychiatric conditions, the appeal court said the federal government has taken portions of the Supreme Court ruling out of context.
In fact, the issue of whether those with psychiatric illnesses should be excluded was “squarely” before the top court, which nevertheless “declined to make such an express exclusion as part of its carefully crafted criteria.”
“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.
The appeal court also questioned the appropriateness of the federal government appealing a court-ordered exemption to the ban on assisted death.
In agreeing to allow exemptions back in January, the Supreme Court “did not intend this to be an adversarial process,” the trio of judges noted. Moreover, the top court intended superior courts, not federal or provincial attorneys general, to be the “gatekeeper” of exemptions until a new law is enacted.
“Can it be said to be in the public interest to have the Attorney General of Canada (Jody Wilson-Raybould) assume the role of adversary when she is not satisfied that the application meets the Carter 2015 criteria? We do not think so.”