A major British Columbia health authority has updated its guidelines for medical staff on how to respond to requests for assisted death, allowing patients to be referred to another doctor.iStockphoto/Getty Images/iStockphoto
For the first time in assisted-death cases, Canadian judges have refused to bar the media and other members of the public from the hearings.
Two weeks ago, Chief Justice Christopher Hinkson of the B.C. Superior Court rejected a request from a woman at an advanced state of multiple sclerosis for an in-camera hearing, in an oral ruling that has now come to light.
And this week, Ontario Superior Court Justice Clayton Conlan turned away a request for a closed courtroom from an individual dying from an irreversible disease – although the judge agreed to keep secret the name of the disease and other personal details, including gender, name and age. (The individual is between 40 and 75, the judge said.)
The insistence on keeping the courts open to the public breaks from the precedent set in Canada's first application in late February for an assisted death. In that case, Alberta Court of Queen's Bench Justice Sheilah Martin did not permit media lawyers to make arguments, other than to allow a Calgary Herald reporter who happened to be present to speak for an open court on the spot, which she then rejected before closing the courtroom and sealing the court file.
In the two new cases, the judges acknowledged that the people seeking their permission for a doctor's help in dying have a strong interest in privacy. But Chief Justice Hinkson said assisted-death hearings are "uniquely significant" and granting the request would harm the "open court principle," freedom of expression and the media.
"Conducting these proceedings in camera would effectively prevent the public from having any information about the case, other than what is volunteered by the parties or provided by the court in its reasons for judgment," Chief Justice Hinkson said, in a ruling now published on the court's website. "The media would therefore be limited to reporting on the facts and the issues through the lens of the court and the parties, without being able to form its own view." (On Friday, he granted the woman permission for a doctor-assisted death.)
In the Ontario case, Justice Conlan told A.B., the person seeking to die, to inform the media of the request for an in-camera hearing. That led to media lawyer Peter Jacobsen, representing The Globe and Mail and Postmedia Network, making written submissions in support of an open court. The governments of Canada and Ontario were represented at the hearing but took no position on whether the courts should be open. (During the assisted-death hearing, no reporters or other members of the public showed up.)
David Crerar, a Vancouver lawyer with a specialty in media law, said the two decisions are a recognition of the "high bar" in Canadian law for shutting out the public from a courtroom. "These are very sympathetic applicants and it's a natural human reaction to say, 'oh, absolutely, give them 100 per cent of what they want'" in privacy protection. The rulings are consistent with past cases, he said, in which the public may be excluded only to protect a witness who might otherwise be severely harmed or killed, or to protect national security.
Alexandra Ferrier, an Owen Sound lawyer who represented A.B., said she was "a little surprised" that the judge did not grant her client's request to close the courtroom, but she added that the judge imposed limits on what the media could reveal about her client that adequately protected the client's identity.
The Supreme Court of Canada struck down the Criminal Code ban on doctor-assisted death in February, 2015, and suspended the ruling's effect for one year. When Ottawa asked for longer, the court granted a four-month extension but said that until June 6, Canadians may ask superior court judges to authorize a doctor-assisted death.
In the Alberta case, Justice Martin explained her decision to close the courtroom by saying her judgment ultimately brought transparency, and that medical matters are usually covered by privacy laws. She granted permission for an assisted death to a woman with amyotrophic lateral sclerosis, a degenerative, paralyzing condition, without requiring signed affidavits from the woman's doctors and the woman had a physician-assisted death soon after.
Sean Fine