This week the Alberta Court of Appeal released the first appellate court decision on a “right to die” or Carter application. The case of Canada (Attorney General) v. F. (E.), 2016 ABCA 155, represents the first time a decision of a lower court (of which there have been close to 20 across the country to date) in Canada granting authorization for physician assisted death has been appealed, or even opposed.

The Attorney General of Canada opposed the applicant, E.F.’s, request for a physician assisted death on two main grounds: first, that her illness is not terminal; and second, that it is psychiatric in origin. E.F.’s condition is described as follows in the case:

“a 58 year old woman who endures chronic and intolerable suffering as a result of a medical condition diagnosed as ‘severe conversion disorder’, classified as a psychogenic movement disorder. She suffers from involuntary muscle spasms that radiate from her face through the sides and top of her head and into her shoulders, causing her severe and constant pain and migraines. Her eyelid muscles have spasmed shut, rendering her effectively blind. Her digestive system is ineffective and she goes without eating for up to two days. She has significant trouble sleeping and, because of her digestive problems, she has lost significant weight and muscle mass. She is non-ambulatory and needs to be carried or use a wheelchair. Her quality of life is non-existent. While her condition is diagnosed as a psychiatric one, her capacity and her cognitive ability to make informed decisions, including providing consent to terminating her life, are unimpaired. She deposes that she is not depressed or suicidal, but ‘simply exhausted after years of suffering indescribable pain’. Medical opinion evidence confirms that the applicant is not suffering from depression and is able to and is voluntarily consenting. Her mental competence is not in dispute. We also note that the applicant’s husband and adult children are supportive of her decision.”[1]

E.F. was diagnosed with severe conversion disorder nine years ago, and has been seen by several psychiatrists and at least one neurologist. She has tried several treatments, none of which has succeeded in mitigating her symptoms. The court heard evidence that her condition has remained largely unchanged for the last four years.

Canada agreed that neither a terminal illness or an illness of non-psychiatric origin are requirements that are included in the Supreme Court’s criteria for an exemption, which only requires “a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”[2] However, Canada argued that the broad and subjective criteria set out by the court, and in particular the term “grievous and irremediable medical condition,” when read in light of the Supreme Court’s reasons as a whole and the facts of the case before it (of applicant Gloria Taylor, who had ALS), must be interpreted to include both requirements.

Canada did not take issue with E.F.’s competence or ability to freely consent to the termination of her life.

The Alberta Court of Appeal unanimously disagreed with Canada’s submissions, and found that the Supreme Court’s declaration of invalidity does not require the applicant to be terminally ill; nor does it require that the applicant suffer from a condition that does not have psychiatric origins. Further, any attempt to read in or infer additional limitations to those expressly set out by the Supreme Court must, the Court of Appeal held, respect the balance of competing values struck by the court, between the sanctity of life and society’s interest in protecting the vulnerable, versus the Charter rights of an individual to personal autonomy without state intervention, including autonomy over personal decisions regarding one’s life and bodily integrity.[3]

The court specifically found that both psychiatric conditions and non-terminal conditions were considered by the trial judge in Carter and were therefore a part of the evidentiary record, and the reasoning, of the Supreme Court. To therefore suggest, as Canada did in this case, that such people do not fall within the scope of the Supreme Court’s decision that the prohibition on physician assisted suicide is overbroad, is to narrow the SCC decision in a manner that is unconstitutional.

At the same time, the court specifically noted that it was not deciding the constitutionality of any proposed legislation, stating, “although draft legislation, in the form of Bill C-14, is currently in the legislative process, there is no legislation that is the subject of constitutional review. Issues that might arise regarding the interpretation and constitutionality of eventual legislation should obviously wait until the legislation has been enacted.”[4]

Be that as it may, it appears that at least in the Alberta Court of Appeal’s view, Bill C-14 may well be unconstitutional, as it limits assisted death to those who are terminal, or at least for whom death has become “reasonably foreseeable”, and it does not allow death for those who suffer solely from a mental condition.

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[1] Canada (Attorney General) v. F. (E.), 2016 ABCA 155, at para. 7.

[2] Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331 at para. 127; Carter v. Canada, 2016 SCC 4 at para. 1; F.(E.). at para. 28.

[3] F.(E.) at para. 40.

[4] F.(E.) at para. 27.