Alberta has told prosecutors and police that no member of medical teams involved in an assisted death for mentally competent, severely ill adults will be prosecuted, the clearest attempt by any province to create certainty around the newly legalized practice.
"No prosecution will be commenced … against a physician (or a member of the health care team)," according to the prosecution service directive dated June 6 from the Justice and Solicitor-General's department. The medical workers' involvement must meet the terms of the Supreme Court ruling that established a right to a medically assisted death: consent from a competent adult who is suffering intolerably with a grievous and irremediable condition, the directive says.
The Alberta order brings assisted death a step closer to widespread availability. But while health-care regulators as far off as Nova Scotia applaud Alberta and demand similar directives, continued uncertainty means the right to control the "passage into death," as the Supreme Court put it, still has not taken hold in much of the country.
A national hospital association says its members will go to court for permission, rather than risk the prosecution of health-care workers.
"Most members would understand the need to go to court, in the absence of a federal law," said Bill Tholl, president and CEO of HealthCareCan, a federation of hospital and health associations.
The wildly varying positions on assisted death come after a Supreme Court deadline passed without federal legislation in place. The court, in declaring a right to assisted death in February, 2015, never said that government had to draft a law. It simply said the constitutional right to an assisted death would take effect in a year. It extended the time by four months – to June 6 – at the request of the Liberal government. In granting that extension, a court majority said a "constitutional exemption" on the Criminal Code ban on assisted death would end when the four months were over.
Under Canadian law, most Criminal Code prosecutions are a provincial responsibility. Rather than issue an Alberta-style directive, Manitoba has gone so far as to tell patients and medical professionals they need to go to court to receive authorization for an assisted death. Similarly, Ontario's Health Minister and Attorney-General suggested in a joint statement this week that obtaining a court's permission is the best way to go. In Nova Scotia, medical regulatory bodies asked the province on Monday for a directive reassuring pharmacists and nurses they would not be prosecuted. (The province's regulatory body for doctors is confident physicians are in the clear.) As of Tuesday, the province had not replied.
The position that court authorization is necessary or advisable angers John Myers, a Winnipeg lawyer who helped patients obtain such authorization in Manitoba during the four-month period, which ended on Monday, in which the Supreme Court of Canada declared such a system available.
"The Charter right is not stayed [suspended] any more. They have it. Why do we have to force families to go to court if they qualify?"
Jocelyn Downie, a law professor at Dalhousie University's Schulich School of Law, said she doubts the courts would grant such authorization now. "It's not even clear on what basis you would go to court because you can't get a pre-emptive declaration of no criminal liability from a court," she said. "There's no way you can go under Carter [the name of the Supreme Court's rulings on assisted death]. There's no mechanism. That's done."
In Nova Scotia, a regulatory body of doctors says it feels confident doctors are protected from prosecution.
"The Carter decision is absolutely clear that physicians are exempted from criminal sanctions," said Gus Grant, registrar of the Nova Scotia College of Physicians and Surgeons. He said he expects registrars of medical bodies in other provinces to press their governments for a directive like that of Alberta.