Case: Canada (Attorney General) v E.F., 2016 ABCA 155 (CanLII)
Keywords: Physician Assisted Death; Carter v. Canada (Attorney General),  1 SCR 331, 2015 SCC 5 (CanLII); Carter v. Canada (Attorney General), 2016 SCC 4 (CanLII); Psychiatric Conditions; Exemption Hearing
E.F. is a 58 year old woman enduring chronic and intolerable suffering as a result of “severe conversion disorder” (classified as a psychogenic movement disorder). She suffers involuntary muscle spasms radiating from her face through the side and top of her head and into her shoulders; her eyelid muscles have spasmed shut; her digestive system is ineffective; she is non-ambulatory and needs to be carried or is otherwise wheelchair bound. In the words of the Court of Appeal, her quality of life is “non-existent” (see para. 7).
E.F.’s capacity and cognitive ability, including the ability to make informed decisions, are unimpaired. She is neither depressed nor suicidal – rather E.F. is “simply exhausted after years of suffering indescribable pain” (see para. 7).
E.F. brings an application in the Alberta Court of Queen’s Bench for judicial authorization entitling her to access physician assisted death. She gives notice of her application to the Attorney General of Canada, Attorney General of Alberta, and Attorney General of British Columbia (the physician prepared to assist E.F. practises in that province).
The Attorneys General take the position E.F. does not come within the Carter criteria because her illness is not regarded as terminal, and the illness has its root in a psychiatric condition. The motions judge disagrees with these submissions and grants E.F.’s application.
Canada and British Columbia appeal the order. The appeal raises two legal issues regarding the interpretation of the Supreme Court of Canada’s decision in Carter v. Canada (Attorney General),  1 SCR 331:
(1) does the constitutional exemption granted in Carter v. Canada (Attorney General), 2016 SCC 4 (CanLII) apply only to applicants whose medical conditions are terminal?; and
(2) are those persons suffering psychiatric conditions and who otherwise comply with the criteria in Carter v. Canada (Attorney General),  1 SCR 331, 2015 SCC 5 (CanLII) similarly excluded from the ambit of the constitutional exemption?
The Alberta Court of Appeal concludes the declaration of invalidity in Carter does not require the applicant to be terminally ill to qualify for authorization; persons with a psychiatric illness are not explicitly or inferentially excluded, so long as they fit the criteria at para. 127 of Carter v. Canada (Attorney General),  1 SCR 331, 2015 SCC 5 (CanLII).
This is the first appellate decision on Carter judicial authorizations. With respect to the first issue on appeal, the Court stated “no words” in Carter v. Canada (Attorney General),  1 SCR 331, 2015 SCC 5 (CanLII) suggest terminal illness as a requirement (see para. 41).
The Court of Appeal reiterated the Supreme Court of Canada’s admonishment of the blanket prohibition on assisted dying, stating any attempt to read in or infer additional limitations to those expressly set out in para. 127 of Carter v. Canada (Attorney General),  1 SCR 331, 2015 SCC 5 (CanLII) must,
respect the balance of competing values struck by the court – balancing the sanctity of life, broadly speaking, and society’s interest in protecting the vulnerable, against the Charter rights of an individual to personal autonomy without state intervention, including autonomy over personal decisions regarding one’s life and personal integrity (see para. 40).
The Court of Appeal concluded it is simply not permissible to conclude people who are not expressly excluded from Carter v. Canada (Attorney General),  1 SCR 331, 2015 SCC 5 (CanLII) are in some way “inferentially excluded”. Moreover, it is not be appropriate to revisit these issues at authorization hearings conducted under the Carter regime.
With respect to the second issue on appeal, the Court of Appeal agreed with the motions judge. Persons with a psychiatric disorder are not excluded from the wording of para. 127 in Carter v. Canada (Attorney General),  1 SCR 331, 2015 SCC 5 (CanLII). As such, they are capable of exercising their right to assisted dying, provided they can establish competence and clear consent: “The court’s decision was premised on competent individuals being entitled to make decisions for themselves…” (para. 53).
By way of comparison, “minors” as referred to at para. 111 of Carter v. Canada (Attorney General),  1 SCR 331, 2015 SCC 5 (CanLII) do not fall within the parameters of para. 127 – which applies only to adults. Furthermore, “minor medical conditions” are also excluded as these do not cause “enduring and intolerable suffering” (see para. 51).
Finally, it is interesting to note the Court’s approach to the presence of the Attorneys General at exemption hearings. The Court of Appeal stated providing notice to the Attorneys General is “not required” (see para. 70), but acknowledged doing so has become the practice on these applications. Interestingly, the Court of Appeal emphasized the Supreme Court of Canada did not intend exemption hearings to become an adversarial process:
“It is the superior courts, not the Attorneys General, that are tasked with being the gatekeeper in an authorization application. Can it be said to be in the public interest to have the Attorney General of Canada assume the role of adversary when she is not satisfied the application meets the Carter 2015 criteria? We do not think so”. (see para . 71).
Counsel for the Appellant, The Attorney General of Canada: B. Hughson & C. Regehr
Counsel for the Appellant, The Attorney General of British Columbia: L. Greathead
Counsel for the Respondent: T.D. Carey
See also, in other jurisdictions: