Category: Remedies Page 1 of 4

By: Jennifer Koshan

PDF Version: Constitutional Exemptions for Physician Assisted Dying: The First Case of Judicial Authorization in Alberta

Case Commented On: HS (Re), 2016 ABQB 121 (CanLII)

On February 29, 2016, Justice Sheilah Martin of the Alberta Court of Queen’s Bench released a decision providing authorization for physician assisted death to HS, an adult woman with amyotrophic lateral sclerosis (ALS). This is thought to be the first case outside of Quebec where a court has confirmed the eligibility of a claimant for a constitutional exemption following the Supreme Court of Canada’s decision in Carter v Canada (Attorney General), 2016 SCC 4 (CanLII) (Carter II). As I noted in a previous post, in Carter I (Carter v Canada (Attorney General), 2015 SCC 5) the Supreme Court struck down the criminal prohibition against physician assisted death (PAD) on the basis that it unjustifiably violated the rights to life, liberty and security of the person in section 7 of the Charter. That remedy was suspended for a year to allow the federal government time to enact a new law without leaving a gap in the legislative scheme that might be used to induce vulnerable persons to take their own lives. The Court declined to grant exemptions from the suspension in Carter I given that none of the claimants were in need of immediate relief; Gloria Taylor, the only Carter claimant who had originally sought an exemption, had died before the Supreme Court hearing (2015 SCC 5 at para 129). In Carter II, the Supreme Court extended the suspension of its remedy by 4 months to account for the change in federal government (see Elliot Holzman’s post on Carter II here). In light of the extraordinary nature of the extension — which permitted an unconstitutional law to remain in effect for an extended time — the Court granted a constitutional exemption to competent adults when they met certain criteria: (1) they clearly consent to the termination of life and (2) they have “a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition and that cannot be alleviated by any treatment acceptable to the individual.” (2016 ABQB 121 at para 2). This post will focus on the role of courts that are called upon to assess claimants’ eligibility for constitutional exemptions, as discussed by Justice Martin in the HS case.

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By: Elliot Holzman

PDF Version: Physician-Assisted Dying Once Again Before the Supreme Court: What Just Happened?

Case Commented On: Carter v Canada (Attorney General), 2016 SCC 4

On February 6, 2015, the Supreme Court of Canada handed down its much-anticipated decision in Carter v Canada (Attorney General), 2015 SCC 5 (Carter I), a landmark ruling where the criminal prohibition on physician-assisted dying was declared unconstitutional. Professor Jennifer Koshan wrote here about Carter I. In that decision, the Court did not immediately invalidate the relevant sections of the Criminal Code, RSC 1985, c C-46, rather the declaration of invalidity was suspended by one year, set to expire on February 6, 2016. Since February 6, a confluence of factors, including: Parliament not acting with much hurry on crafting new legislation to respond to Carter I, a historically long federal election that resulted in a change of government, and the four-month dissolution of Parliament, resulted in the Court once again hearing oral arguments in the case – this time an application by the Attorney General of Canada to extend the suspension of invalidity by another 6 months (see Carter v Canada (Attorney General), 2016 SCC 4 (Carter II)).

In Carter II, the Court had to grapple with new issues since the Carter I decision – Quebec’s National Assembly enacted its own legislation permitting physician assisted suicide – and the Court heard oral arguments from the Attorney General of Quebec seeking an exemption from the proposed extension. The Court granted the Attorney General of Canada a four-month extension, Quebec was given the green light to implement its legislation, and in the four-month window, individual patients can apply to the courts for a constitutional exemption to the suspension of invalidity. This comment will first look at the remedy the Court crafted in Carter I, and then move on to its decision in Carter II.

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