In a decision released on January 15, 2016, the Supreme Court of Canada has granted the Attorney General of Canada a further four month extension beyond February 6, 2016, of the suspension of constitutional invalidity of the Criminal Code provisions relating to physician assisted death. In addition, in a 5:4 decision, the Supreme Court has allowed Québec to be exempted from that suspension (i.e., Québec's law can go into effect), and it is allowing individuals who wish to seek assistance from a physician in accordance with the criteria set out in the SCC's previous reasons (para 127) to bring applications to the superior court in each other province or territory for relief during the period of extension.

At paragraph 127 of its previous decision, the Supreme Court provided that a person may receive the assistance of a physician to end their life, so long as the person:

  1. Is a competent adult;
  2. Clearly consents to the termination of life; and
  3. Has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. (Irremediable does not require the patient to undertake treatments that are not acceptable to the patient.)

What would be involved in a court application?

It may be recalled that when the Carter case first came before the British Columbia Supreme Court, Justice Lynn Smith carved out a specific exemption for Gloria Taylor, one of the plaintiffs, so that she would not have to wait out the appeal process should she desire a physician-assisted death.

Assistance on what a court would consider in granting an exemption to an individual can therefore be gleaned from the following process that Justice Smith outlined in order for Ms. Taylor to receive her constitutional exemption:

  1. Ms. Taylor provides a written request (presumably to her physician).
  2. Her attending physician attests that Ms. Taylor is terminally ill and near death, and there is no hope of her recovering [Note — the SCC did not accept this test, and modified it to be that the applicant would have a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual].
  3. Her attending physician attests that Ms. Taylor has been:
    1. informed of her medical diagnosis and prognosis;
    2. informed of the feasible alternative treatments, including palliative care options;
    3. informed of the risks associated with physician-assisted dying and the probable result of the medication proposed for use in her physician-assisted death;
    4. referred to a physician with palliative care expertise for a palliative care consultation;
    5. advised that she has a continuing right to change her mind about terminating her life.
  4. Her attending physician and a consulting psychiatrist each attest that Ms. Taylor is competent and that her request for physician-assisted death is voluntary and non-ambivalent. If a physician or consulting psychiatrist has declined to make that attestation, that fact will be made known to subsequent physicians or consulting psychiatrists and to the court.
  5. Her attending physician attests to the kind and amount of medication proposed for use in any physician-assisted death that may occur.
  6. Unless Ms. Taylor has become physically incapable, the mechanism for the physician assisted death shall be one that involves her own unassisted act and not that of any other person.

The British Columbia Supreme Court indicated that once these conditions were met, Ms. Taylor could then make an application to the Court, without notice to any other party, and upon proof of the above to the Court's satisfaction, the Court shall order that:

  1. a physician may legally provide Ms. Taylor with a physician-assisted death at the time of her choosing provided that Ms. Taylor is, at the material time:
    1. suffering from enduring and serious physical or psychological distress that is intolerable to her and that cannot be alleviated by any medical or other treatment acceptable to her;
    2. competent, and voluntarily seeking a physician-assisted death, in the opinion of the assisting physician and a consulting psychiatrist;
  2. notwithstanding any other provision of law, should Ms. Taylor seek and obtain a physician-assisted death, that the assisting physician be authorized to complete her death certificate indicating death from her underlying illness as cause of death.

With no further guidance from the SCC, we would anticipate that these are the same processes and evidence which a judge of any provincial or territorial Superior Court would require before authorizing a physician-assisted death.

The bringing of such a court application would be initiated by the individual seeking the physician-assisted death, almost certainly with the assistance of his or her own legal counsel. There is no suggestion that any physician would be obliged to provide the attestations (likely by way of an affidavit) referred to. A physician willing to provide such an attestation would be wise to have some independent legal guidance through that process, particularly during this interim period of time in which governments and regulators are considering and drafting the legislation and any guidelines that will govern this issue. To the extent that some provincial regulators have already released draft guidelines (as has the CPSO in Ontario), they should also be referenced.