In Canada, MAID has now been legal since June 2016 when the Parliament of Canada passed federal legislation that allowed eligible Canadian adults to request medical assistance in dying. However, the issue is by no means settled and the courts have been frequently called upon to referee MAID’s implementation and application.
By way of background, the Supreme Court of Canada (SCC), in its seminal 2015 decision in Carter v. Canada (Attorney General) 2015 SCC 5, struck down sections of the Criminal Code of Canada that prohibited physician-assisted dying. The SCC found that the governing sections of the Criminal Code violated the guarantee to life, liberty and security of persons set out in The Canadian Charter of Rights and Freedoms (section 7).
In order to be eligible for MAID, a patient must meet all of the following criteria:
- Be eligible for health services funded by the federal government, or a province or territory (generally, visitors to Canada are not eligible for medical assistance in dying)
- Be at least 18 years old and mentally competent. This means being capable of making health care decisions for yourself.
- Have a grievous and irremediable medical condition such that natural death has become reasonably foreseeable.
- Make a voluntary request for medical assistance in dying that is not the result of outside pressure or influence
- Give informed consent to receive medical assistance in dying
A recent decision of the Supreme Court of Nova Scotia captured the attention of the national media. The facts of the case are as follows: Y and X are husband and wife. They are in their early 80s and have been married for almost 50 years. X suffers from chronic obstructive pulmonary disease (COPD), which is a type of obstructive lung disease characterized by long-term breathing problems, including shortness of breath. COPD typically worsens over time. In addition, X suffered from a number of other underlying medical conditions.
X claimed that he was eligible for MAID scheduled the procedure to end his life on July 20, 2020. However, Y intervened and brought a court application seeking an injunction enjoining X and the Nova Scotia Health Authority from carrying out X’s assisted suicide. Y also sought “[a] declaration that [X] does not meet the legal requirements to permit an assisted suicide according to Canadian law and particularly that he does not suffer from a grievous and irremediable medical condition and that his death is not reasonably foreseeable”.
The evidence before the court included Y’s affidavit, an extensive affidavit from the Interim Director for MAID in Nova Scotia, several physician and nurse practitioner assessments, reports from a psychiatrist, a respirologist, and an addiction medicine physician. Y also filed an expert medical report/affidavit.
From the outset, the court acknowledged that both X and Y sincerely believed they were acting in the best interests of X. However, after weighing all of the evidence, the court declined to grant an injunction which would prevent X from exercising his constitutional right to end his life.
Generally, a court will grant an injunction where there is a (a) serious issue to be tried, (2) the party asking for injunctive relief has suffered irreparable harm, and (3) the balance of convenience between the parties favours granting an injunction.
In coming to its decision, the court acknowledged that there was a serious issue to be tried; namely, “is the approval of the MAID-process regarding X lawful”.
As Y sought the injunction, it fell to Y to demonstrate to the court that she would suffer “irreparable harm” if the injunction were not granted. At law, irreparable harm refers to the nature of the harm suffered rather than its magnitude. The party asking for injunctive relief must also show that such harm cannot be quantified in a monetary terms or, if the injunction is not granted, cannot be cured.
In coming to its decision, the court was satisfied that if an injunction was not granted, Y would indeed suffer irreparable harm, as the dispute between Y and X would become qualitatively moot because X could then take steps to immediately end his life.
Balance of Convenience
In considering this criteria (effectively which party would be more inconvenienced by the relief requested), the court held that Y would not suffer greater harm than X if the injunction were not granted. The court found that there was compelling evidence that X had been reasonably determined to have a grievous and irremediable medical condition and that his natural death had become reasonably foreseeable. Moreover, the other MAID eligibility conditions had been met. In addition, X had some level of ongoing dementia, which could render him incapable and therefore no longer qualified to consent to MAID if his life ending procedure was delayed. According to the court, there was a real risk that X would be deprived of his present choice to end his life. “I conclude [X] would suffer irreparable harm if the injunction is granted. On balance, the harm he would suffer is significantly greater that what his wife would suffer”.
The case before the Nova Scotia Supreme Court was clearly fraught with emotion, marital tension and strongly held moral positions. The court was asked to weigh the competing rights and values of the parties – never an easy or enviable task. Nevertheless, the court decided the issue and released comprehensive reasons that should hopefully add clarity and context to the right to die debate.
On the same day that the lower court released its decision declining Y’s request for a temporary injunction preventing X from accessing MAID, Y filed a Notice of Appeal and requested a stay of the lower court order pending the determination of her appeal (which, in essence, would mean that Y would get the temporary injunction she was seeking through the back door rather than the front).
Van den Eynden J. A. explained the appeal process succinctly as follows:
“When a party appeals a lower court order, the order remains operative pending the appeal outcome unless a stay is granted. A panel of judges hears and determines the appeal. A single judge sitting in chambers determines a stay motion. A stay is not automatic, and there are principles that guide the exercise of this discretionary remedy.”
In the result, Van den Eynded J. A. refused to grant Y the stay she was seeking. As a result, there is no injunction in place preventing X from moving forward with MAID. While the full hearing of the appeal is scheduled for September 24, 2020, the matter may be moot at that time. Stay tuned.