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Health Law - Health care professionals - Particular professions - Doctors - Constitutional issues - Canadian Charter of Rights and Freedoms -

Thursday, July 07, 2016 @ 8:00 PM  


Application by OP for a declaration that his intended physician-assisted death met the Carter criteria. The applicant was in his 60s and had end-stage incurable brain cancer. His prognosis was that he would die in three months. In addition to the applicant’s own evidence of his symptoms and intolerable suffering, he adduced affidavits in support of the relief sought from his family physician, palliative care physician, the psychiatrist who assessed his capacity to consent, family members and friends. The applicant sought a declaration that he met the Carter criteria, as opposed to a straightforward court-ordered authorization for a physician-assisted death. The applicant’s position was that, following expiration of the declaration of invalidity of the relevant criminal offence provisions on June 6, 2016, the satisfaction of the Carter criteria of itself gave rise to a constitutionally protected right to a physician-assisted death without court authorization. The applicant’s choice of remedy was to ensure his physicians were insulated from any civil, criminal or regulatory consequences, and to circumvent the Chief Coroner’s investigative role in connection with physician-assisted deaths authorized by courts.

HELD: Application allowed. The expiration of the declaration of constitutional invalidity of the criminal offence provisions related to assisted suicide gave rise to uncertainty regarding the state of the law. Pending enactment of federal legislation regulating physician-assisted deaths, any constitutional right thereto was available only by court order. After June 6, 2016, a court authorization order was required as a constitutional remedy under s. 24(1) of the Charter in order to ensure the rule of law, safeguard against risks to vulnerable people arising from an unregulated regime of physician-assisted death, and as a practical necessity to insulate medical practitioners from exposure to civil, criminal or regulatory liability. The evidence established that the applicant met the Carter criteria for the court’s authorization of a physician-assisted death. The applicant was granted a declaration to that effect with orders declaring the circumstances did not require involvement of the Chief Coroner, and that the healthcare providers who assisted in the applicant’s death were permitted by law to do so.