The Supreme Court of Canada,  Carter v. Canada (Attorney General), found that sections 14 and 241(b) of the Criminal Code, which prohibited physician-assisted death violated section 7 of the Canadian Charter of Rights and Freedoms. The federal government was given 16 months to  enact legislation consistent with the Charter.

In the interim, the Supreme Court ruled that an individual may apply through the relevant provincial court (in Ontario, the Superior Court of Justice), to be granted a personal constitutional exemption to allow for medical assisted death. Thus it fell to the lower court judges to assess whether individuals satisfy the eligibility criteria set forth in paragraph 127 of Carter-2015. In Ontario, the court drafted procedural and evidentiary guidelines for such applications.

A.B. v. Canada (Attorney General) was the first such application heard in Ontario.

A.B’s Circumstances

On March 17, 2016, 81-year-old A.B. who suffered from aggressive large B-Cell Lymphoma was granted a personal constitutional exemption to pursue medical-assisted death, as well as a declaration that the coroner need not be notified to examine the circumstances of his death. His death was confirmed shortly after, in a statement released by his family on the next day.

In granting A.B.’s application for personal constitutional exemption, Judge Perell considered the affidavit evidence provided by A.B., his wife and daughter, physicians, a geriatric psychiatrist and a legal assistant of A.B.’s counsel, as well as legal argument from A.B.’s lawyers. He concluded that A.B. satisfied all criteria extracted from paragraph 127 of Carter-2015, as well as the guidelines set out by the Practice Advisory.

Notification to Coroner

With respect to A.B.’s second application that the coroner not be notified upon his death, Judge Perell accepted A.B.’s submission that medical-assisted death constitutes a form of treatment in this case.

Judge Perell also found that the provisions of the Coroners Act, R.S.O. 1990, c. C.37. must be interpreted so as not to violate the Charter, wherein a seizure and dissection of the individual’s body contradicts the purpose of the constitutional exemption, which is aimed to protect the dignity of the individual. Judge Perell thus concludes that a coroner’s investigation is not necessary as it provides “no useful public purpose”.

It will be interesting to see how cases such as these impact the pending federal legislation and any provincial legislation that follows. In addition, it remains to be seen whether special considerations need to be made when preparing an Estate plan for someone seeking medical-assisted death in Ontario.

For questions about this case or if you or a loved one are looking for advice and guidance on this issue, contact the estate litigation lawyers at Eisen Law in Toronto to find out how we can help. Call us at 416-591-9997 or contact us online.

 



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