In two separate decisions, the courts have made it clear that nothing in Carter v. Attorney General (Canada), 2015 SCC 5 requires that the person seeking medical assistance in dying be suffering from a terminal illness or condition. And yet the government persists in pursuing Bill C-14 with its requirement of “reasonable foreseeability” of death.

 In Alberta, the Court of Appeal held that there was no such requirement. In Canada (Attorney General) v. E.F., 2016 ABCA 155, Madam Justice Bast (for the court) considered an appeal brought by the Attorneys General for Canada and for British Columbia.  First of all, Bast JA noted that the respondent E.F. was not applying for a constitutional exemption – that exemption was already created by the Supreme Court of Canada in Carter. Rather, E.F.’s application was simply to find out whether she fit within the definition of the exemption as outlined by the Supreme Court:

[22] Finally, Canada submits that the standard of review must be higher in this case because we are dealing with a constitutional exemption. The argument goes that it is necessary to rigorously scrutinize the decision because of its constitutional significance and because of the finality of the relief sought.

[23] We disagree. We must consider in a practical manner what is involved in the judicial authorization exercise. As was mentioned previously, we agree with the observations of Martin J in H.S., wherein she concluded that the majority in Carter 2016 has already granted a constitutional exemption to the group of individuals who meet the criteria set out in paragraph 127 of Carter 2015. As she noted at paragraph 48, “the role of authorizing courts is to hear individual applications and determine whether a particular claimant is inside or outside the group which has already been granted the constitutional exemption”. We agree that the motions judge is not called upon to inquire into whether a claimant has established an individual case for a personal constitutional exemption; the task of the authorizing court is limited to determining whether a particular claimant satisfies the criteria established in Carter 2015 so as to qualify for the exemption already granted by the Supreme Court.

[24] Accordingly, the constitutional dimensions and debate inherent in the granting of a personal constitutional exemption do not form part of the inquiry in an application under Carter 2016. The authorization hearings are not intended as requests for exemptions. These are not individual constitutional challenges. The question the Supreme Court has directed the superior courts to answer in these applications is whether the applicant falls within the identified group. This limited inquiry is individual and fact-specific.

The learned judge considered numerous arguments on behalf of Canada (it is noted that British Columbia did not support Canada in this position) as to why the principles in Carter should be limited to those at the end of life or in terminally ill situations. She rejected them all and concluded:

[41] In summary, the declaration of invalidity in Carter 2015 does not require that the applicant be terminally ill to qualify for the authorization. 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 interpretation urged on us by Canada is not sustainable having regard to the fundamental premise of Carter itself as expressed in its opening paragraph, and does not accord with the trial judgment, the breadth of the record at trial, and the recommended safeguards that were ultimately upheld by the Supreme Court of Canada.

Similarly, in I.J. v. Canada (Attorney General), 2016 ONSC 3380, Perrell J. held that there was no requirement for an illness to be terminal or for the applicant to be near the end of life. Instead, the fact that a person may be near the end of life would be simply a consideration for the court in assessing whether or not the suffering was indeed grievous and irremediable:

[18] In A.B. v. Canada (Attorney General), supra, while I said that it would be sufficient that a person’s grievous medical condition was life-threatening or terminal, I did not say that a terminal illness was a necessary precondition for a constitutional exemption. The gravamen of a grievous and irremediable medical condition is not whether the illness, disease, or disability is terminal but the grievousness is the threat the medical condition poses to a person’s life and its interference with the quality of that person’s life.

[19] There is no requirement in Carter v. Canada (Attorney General), 2015 SCC 5, or Carter v. Canada (Attorney General), 2016 SCC 4, that a medical condition be terminal or lifethreatening.

[20] In Canada (Attorney General) v. E.F., 2016 ABCA 155, the applicant was a 58-year-old woman with a psychogenic movement disorder that caused her severe and constant pain, muscle spasms, a dysfunctional digestive system, sleep and eating disorders, ambulatory incapacity and no quality of life. None of these awful circumstances were terminal, and the Alberta Court of Appeal addressed the point of the nature of a grievous and irremediable medical condition directly, and the Court agreed with the application judge and concluded that the constitutional exemption granted in Carter v. Canada (Attorney General), 2016 SCC 4, does not require the applicant’s medical condition to be terminal.

[21] However, whether or not a person’s illness, disease, or disability will end in death remains relevant to determining whether it is a grievous illness, disease, or disability. The imminence of death may not be determinative, but it is something to consider in determining whether a person has a grievous and irremediable medical condition including an illness, disease or disability.

[22] In determining whether a person satisfies the criteria for a physician-assisted, death, the proximity or remoteness of death and the duration of suffering are relevant factors that must be considered in the unique and special circumstances of any applicant for a physician-assisted death. Each application is personal to the applicant and the court must consider the applicant’s unique and special circumstances: Canada (Attorney General) v. E.F., supra, at para. 25.

In E.F., Bast JA also determined that psychiatric illness (being the condition causing the grievous and irremediable suffering) was not an impediment to a physician assisted death. She found that nothing in Carter would limit the decision to non-psychiatric illnesses or conditions:

[59] As can be seen, in Carter 2015 the issue of whether psychiatric conditions should be excluded from the declaration of invalidity was squarely before the court; nevertheless the court declined to make such an express exclusion as part of its carefully crafted criteria. Our task, and that of the motions judge, is not to re-litigate those issues, but to apply the criteria set out by the Supreme Court to the individual circumstances of the applicant. The criteria in paragraph 127 and the safeguards built into them are the result of the court’s careful balancing of important societal interests with a view to the Charter protections we all enjoy. Persons with a psychiatric illness are not explicitly or inferentially excluded if they fit the criteria.

Justice Bast seemed to query the motivation behind the Attorney General’s appeal of what is essentially a fact-specific exercise – does the applicant meet the requirements for the constitutional exemption or not. She mentioned but did not directly link the decision to appeal to Bill C-14:

[72] We are also left to wonder why it is considered necessary to put an applicant to the test on appeal, particularly where, as here, one of the primary issues is fact-finding. The Attorneys General have not offered any compelling reason for challenging the trial judge’s findings. Moreover, although draft legislation, in the form of Bill C-14, is currently in the legislative process, there is no legislation that is the subject of constitutional review. Issues that might arise regarding the interpretation and constitutionality of eventual legislation should obviously wait until the legislation has been enacted.

In light of these judicial pronouncements, the Alberta Court of Appeal on May 5 and the Ontario Superior Court on May 24, it is difficult to see how the federal government can persist in pushing through Bill C-14 without amendments. Moreover, the requirement that Bill C-14 is imposing (that the applicant’s natural death be reasonably foreseeable) is fraught with difficulty and subjective interpretation. Taken to one extreme, the natural death of every living human being is reasonably foreseeable – we will all die at some point and most of us will die of natural causes. Is that reasonably foreseeable.

I can only hope that the federal government heeds these carefully crafted judgments and reconsiders its position before passing a law which may well be (and may likely be) unconstitutional.

I remain,

Constitutionally yours

Arthur Grant