Attracting the interest of critics in criminal law, constitutional law, health law, elder law and beyond, MAID continues to be among the most hotly debated topics in the contemporary Canadian legal landscape.
In 1993, the Supreme Court of Canada (“SCC”) rejected a Charter challenge to the Criminal Code provisions at the time which prohibited MAID [see: Rodriguez v. British Columbia (Attorney General)]. Years later in 2015, in Carter v. Canada (Attorney General), the SCC declared that the Criminal Code provisions prohibiting MAID were contrary to section 7 of the Charter and, as a result, of no force or effect to the extent that they prohibited MAID for: competent adults with a grievous and irremediable medical condition who consented to such a procedure. The SCC declared the impugned Criminal Code provisions invalid and suspended them for 12 months. Parliament then undertook extensive consultations before new legislation (Bill C-14) came into force in June of 2016.
Since then, the Ontario Superior Court of Justice has been asked to clarify the meaning of “reasonably foreseeable” under the new legislation in 2017, and the Superior Court of Quebec has found the requirement that death be reasonably foreseeable still violates section 7 of the Charter in 2019. Prime Minister Justin Trudeau subsequently advised that the Federal government would be updating existing legislation by March 11, 2020. The deadline has since been extended until December 18, 2020, in part because of COVID-19 and the need for extensive consultations.
Swinemar: Rounds I and II
Justin de Vries, in his August 28, 2020 post on this blog, discussed MAID and the case of Y v. Swinemar [2020 NSSC 225] (“Swinemar”). Swinemar involved a (married) spouse who turned to the court to prevent their significant other from having a MAID procedure conducted as requested. To be more specific, Mrs. Sorenson brought an application to determine whether the approval of her husband’s request to have a MAID procedure conducted (done by a MAID assessor) was lawful, and sought an injunction preventing her husband from having the MAID procedure done before her case was determined.
Before the court in Swinemar were competing professional capacity assessments, most of which suggested that Mr. Sorenson had capacity to consent to the procedure with only one concluding that he lacked such capacity.
The Nova Scotia Supreme Court (“NSSC”) declined to grant the injunction. Mrs. Sorenson appealed forthwith, and sought to have the NSSC’s order stayed until her appeal of the injunction was heard. The Nova Scotia Court of Appeal (the “Court”) declined Mrs. Sorenson’s request for a stay.
Round III: The Appeal
The appeal of the NSSC’s decision to deny the injunction was heard by the Court on September 24, 2020 in Sorenson v. Swimenar [“Sorenson”]. Among the issues raised on appeal were whether Mrs. Sorsenson had raised a justiciable issue and whether Mrs. Sorenson otherwise had standing before the courts to prevent or delay Mr. Sorenson from receiving MAID.
The Court reviewed commentary on the issue of justiciability, finding that there is no single set of rules that delineate the scope of what is justiciable. In the absence of a clear test, the Court considered the “two factors underlying justiciability – legitimacy and the institutional capacity of the courts.”
In considering legitimacy, the Court noted that Parliament intended for eligibility assessments to be done by MAID assessors. Calls for judicial oversight or review were rejected in consultations and in the legislative process. While courts are called upon to determine questions of capacity in other contexts and within other legislative frameworks, it seems that courts were specifically not asked to do so in relation to eligibility assessments granting or denying MAID procedures.
The Court noted that, generally, courts do not have the institutional capacity to review MAID capacity assessments. While our courts make efforts to deal with important matters on an urgent basis, even the most “urgent” of matters cannot always be heard and dealt with efficiently or in a timely manner. Mandating review of MAID assessments would require finding available courtrooms, as well as finding times at which judges, counsel and professional witnesses would all be available. Even where a date can be fixed in short order, this would still be unsatisfactory to the individual seeking to have the MAID procedure; the Court noted that, while Mrs. Sorenson was able to have her motions heard with little delay, “the speediness of these hearings is cold comfort to Mr. Sorenson who is suffering while legal proceedings he did not want continue”.
In the absence of a justiciable issue, the court found that Mrs. Sorenson did not have private or public interest standing. As a result, the Court dismissed Mrs. Sorenson’s appeal and, for the same reasons, her underlying application in the court below.
The Court’s finding is Sorenson does not mean that courts could never have a role in matters relating to MAID. Of course, allegations that MAID was provided or counselled in contravention of the Criminal Code will be prosecuted in court, and constitutional challenges to MAID provisions are squarely in the jurisdiction of the courts. Further, questions of whether policies governing MAID within a province or health authority are in compliance with the Criminal Code could well be subject to judicial scrutiny. Sorenson stands for the proposition that there is no role for judicial oversight, in Nova Scotia, of a decision to grant or deny MAID where there have been differing professional views as to whether a patient meets the eligibility criteria. It remains to be seen whether Sorenson gathers force in other provinces.