The Supreme Court of Canada’s ruling on physician-assisted dying is a bellwether judgment.
Lawyers for an 80-year-old man with aggressive lymphoma asked a Toronto judge on Thursday for privacy for him, his family and his doctors as he seeks a court's permission for an assisted death. But a media lawyer argued it may be in the public interest to know the names of the doctors, and said he would like to see evidence that would explain why their identities should remain private.
"There are going to be other applications like this – it may be relevant to the public and the court to hear whether these are always the same doctors … rubber-stamp types," lawyer Peter Jacobsen, representing The Globe and Mail, Postmedia, the CBC and CTV, told Justice Thomas McEwen of the Ontario Superior Court. "And for those who wish to come forward in the future, they may wish to know who these doctors are."
Andrew Faith, a lawyer for the man with lymphoma, replied that putting the doctors' names "on the front page of the newspaper" would make it more difficult for other patients, and perhaps even his own client, to find a doctor willing to provide this medical service.
Mr. Faith also asked Justice McEwen to seal the evidence (such as affidavits from doctors on the man's physical condition and mental health) in the case. He said he would produce a redacted version for the public, blanking out identifying information. Mr. Jacobsen argued that he should first be given a chance to look at the evidence – without showing it to his media clients – so he could argue against any redactions that he feels go too far.
Justice McEwen said he will decide as soon as Friday on how much openness he will allow, though he cautioned that he may not be the judge who hears the application for authorization for an assisted death, which begins on March 17, and that that judge could vary the rules.
The public hearing in front of Justice McEwen contrasted sharply with the process followed last week by Justice Sheilah Martin of the Alberta Court of Queen's Bench, who closed her courtroom to the media and other members of the public when she heard an application for an assisted death from a woman with amyotrophic lateral sclerosis, known as Lou Gehrig's disease, and sealed all evidence from public view.
A Calgary newspaper reporter who was in the courtroom before the hearing began was given a chance to speak against its closing, but there was no opportunity for a media lawyer to make representations. (The woman obtained a court-authorized, medically assisted death in Vancouver; Justice Martin made her written ruling public this week.)
Both cases come as judges are being given a power over life and death, without clear rules on how to exercise that power. There is now a four-month window when doctor-assisted death is banned in the Criminal Code, during which Superior Court judges may authorize it in situations involving a competent adult who is suffering intolerably and irremediably. There are no rules on how many doctors need to support the request, or whether a psychiatrist has to attest to the individual's mental competence.
In Ontario and British Columbia, Superior Court chief justices have issued guidelines; both set out that people may apply to have a publication ban or closed hearing, under broad rules that allow judges to decide whether privacy is in the interests of justice.
In a court filing, the man applying to the Ontario judge said that he is "suffering intolerable pain and distress that cannot be alleviated."
"I wish to spend the remaining days of my life in the privacy of my family." Public attention "would be detrimental to my wish to die with dignity, privately, in the company of my family." His request for anonymity also applies to the two doctors and a consulting psychiatrist who are supporting his application, and to any medical people involved in carrying out the death procedure.
The Supreme Court of Canada ruled last year that the Criminal Code ban on doctor-assisted death is unconstitutional, but it gave the federal government a year to write a framework for a new law before lifting the ban. When the government asked for more time, the Supreme Court granted four extra months, saying that people could apply to Superior Court judges for authorization until June 6.
Sean Fine