April 7, 2016

Much has been written about last month’s physician-assisted suicide decision by Justice Perell of the Ontario Superior Court of Justice in B. (A.) v. Canada (Attorney General). Ever since the Supreme Court handed down the historic decision of Carter v. Canada (Attorney General) (previously discussed here), as well as its companion decision delaying implementation for an additional four months while allowing individual applications for physician-assisted suicide, it was an open question where, or when, an application might be brought. That question was answered this February with the decision from Alberta of S. (H.), Re. Ontario’s followed in March. There have also been successful applications in Manitoba and British Columbia.

Justice Perell set out a five criteria test as to whether physician-assisted suicide should be allowed. The required criteria for an applicant are:

  1. A competent adult person
  2. Suffering from a grievous and irremediable medical condition
  3. The condition causes intolerable suffering
  4. The suffering cannot be alleviated by any treatment available that the person finds acceptable
  5. The person clearly consents to the termination of life


The effect of the decision may be somewhat limited if, as expected, legislative changes are soon introduced. The federal Special Joint Committee on Physician-Assisted Dying released its report in late February recommending that the Carter decision be implemented with changes to the Criminal Code and procedural requirements. The recommendations made by the panel were mostly in line with Carter. The committee recommended that what it called “medical assistance in dying” be available where five preconditions were present:

  1. Grievous and irremediable medical condition
  2. Enduring suffering that is intolerable
  3. Informed consent
  4. Mental capacity to make the decision
  5. Eligibility for publicly funded health care services


Additionally, two independent doctors must conclude that a person is eligible, the request must be in writing and be witnessed by two independent witnesses, and a waiting period must be observed.

The committee’s recommendation has some differences with B. (A.) v. Canada (Attorney General). For one, the proposed legislative changes are not restricted only to adults; only “mental capacity” is required. While the language of “grievous and irremediable” is present in both, Justice Perell’s decision includes the proviso that the suffering cannot be alleviated by any treatment that the person finds acceptable. That appears to be a subjective element that is not present in other formulations of the test for eligibility.

Another difference is the committee’s requirement that the person be eligible for publicly funded health care services, which it termed as a “residency requirement.” The reason this provision was included was to prevent Canada becoming an assisted suicide travel destination for foreigners (“suicide tourism”), as is allowed in Switzerland. Theoretically this restriction could be in contravention of Charter rights, both because the Supreme Court has acknowledged that non-residents may have Charter rights in certain circumstances, and that eligibility for provincial health care schemes do not precisely correspond with citizenship (although the practical differences may be largely immaterial, and a Charter challenge on this basis seems unlikely).

The government has not yet said when physician-assisted suicide will be considered by cabinet or when legislation might be introduced. With the suspension period only running until June 6, 2016, it seems there may be some legislative action in the next few months.