Jurisprudence continues to develop following Carter decision

The issue of physician assisted death has been at the forefront of Canadian legal news for more than a year. The case P.O. v. Attorney General (Canada) adds another segment to a body of jurisprudence that has become quite robust within a short period of time. The elderly applicant brought an application to authorize his plans for physician assisted death.

Previously, in Carter v. Canada (Attorney General) the Supreme Court of Canada had ruled that in the proper circumstances, Canadians had the right to plan their deaths with the aid of qualified medical professionals. Drawing a careful distinction with the 1993 case Rodriguez v. British Columbia (Attorney General), the decision reversed the earlier finding that s. 241 of the Criminal Code was not a breach of the Canadian Charter of Rights and Freedoms. The government was given 12 months to make necessary legal changes. The government did not meet this deadline and took the unique step of asking for an extension before the law fell into abeyance. In Carter v. Canada (Attorney General) , for the first time, such an extension was granted, giving the government an additional four months. During this time, the majority of the court required that a mechanism be put in place whereby those suffering from grave afflictions could obtain physician-assisted death. (A four judge minority found that courts were not suited for such a role, and that while the extension should be granted, no orders should be made in the interim). In fact, while media closely followed the attempts of stakeholders, professional bodies and legislatures to strike an acceptable arrangement, fewer Canadians were aware that Canadians were already obtaining orders allowing them "death with dignity."

It was soon after the end of this four month grace period that P.O. brought his application. He was clear that he was seeking not merely a court ordered authorization for a physician assisted death, but a declaration that he had a constitutional right to physician assisted death without having to apply for such a court order. The latter request was refused, but the framework put in place by the 2016 Carter decision was kept in place. At the risk of splitting too fine a hair, Perell J. held that "the required court order...is not a matter of a superior court authorizing a constitutional exemption, which was the situation up until June 6, 2016; rather, a court authorization order is required after June 6, 2016 as a constitutional remedy under s. 24(1) of the Constitution Act, 1982, pending the enactment of new legislation...". P.O., a 63 year-old man suffering from incurable cancer, met the criteria and was granted the practical relief he sought, though not in the form he had asked for.

The legal regime put in place after the second Carter decision was noteworthy for the speed at which it developed. In a little over 100 days dozens of orders authorizing physician assisted death were granted, in several different provinces. Related issues such as anonymizing applications (a practice P.O. availed himself of) were canvassed and dealt with (see, for example B.(A.) v. Canada (Attorney General). The only thing missing from a fully fleshed out body of law was review and approval by appellate courts, a process unlikely to be completed in four months.

Although superior courts are not generally known for such speed, several factors likely combined. The first Carter decision had been making its way from the lower courts for years and had been successful at trial, so that interested parties could not have been caught unawares. Those affected by the change were among society's most vulnerable, for whom the issue was of keen import and likely at the top of their day to day concerns.

At the end of his reasons, Perell J. surmised that the matter had likely not been fully laid to rest. Indeed, within days of the decision in P.O., royal assent was given to An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying). Unlike the work performed by the courts in brief period following the second Carter decision, the legislation may not pass constitutional muster. It can only be hoped that any required litigation will move with the efficiency of the applications like those authorized in P.O..