A man with terminal brain cancer will ask a Toronto judge on Wednesday for an assurance that no one who helps him end his life will be prosecuted. It is the first known case of its kind after a Supreme Court-mandated process for physician-assisted dying expired earlier this month.
The man, known as O.P. in documents filed in the Ontario Superior Court of Justice, says he has three concerns: that nurses and pharmacists might be prosecuted; that his doctors could also be charged, because he is uncertain how the government will determine if his case meets the Supreme Court definition of a lawful assisted death; and that an Ontario requirement that his physician notify the Office of the Chief Coroner of his death is intrusive, and violates the man's right to privacy.
The case is an unusual test of Superior Court judges' inherent authority to protect the vulnerable, usually children or mentally incompetent adults.
Assisted death became legal across Canada earlier this month, with no court approval necessary. But in the absence of a federal law permitting it, Ontario and Manitoba urged people seeking an assisted death to go to court. Both provinces have backtracked on that recommendation, and legal experts are uncertain whether courts would grant such individuals what they seek: an exemption from the possibility of punishment for those who assist them.
The Supreme Court of Canada in a February, 2015, ruling in the case of 89-year-old Kay Carter, who had spinal stenosis, established a right to an assisted death for mentally competent adults who are suffering intolerably from a grievous and irremediable condition. It gave governments until June 6 to establish frameworks for assisted dying. After that date, the right to an assisted death took effect.
In a legal filing with the Superior Court, the man's lawyer, Andrew Faith, acknowledges that the court's assurance is not, in a legal sense, necessary.
But without a ruling ahead of time, the health-care workers might not want to assist in the man's death, he said.
"Physicians may be unwilling to take the risk of proceeding, however small it may be, given the potentially drastic consequences if it is later alleged that a patient did not meet the Carter criteria," he said in the court filing.
Some provinces, such as Alberta, British Columbia and Nova Scotia, have given assurances not only to doctors but to other members of health-care teams that those involved in an assisted death that fits the Supreme Court definition will not be prosecuted.
Ontario gave a similar assurance in an e-mail to The Globe and Mail last Thursday. "During this interim period, Ontario will advise prosecutors that physician-assisted death cases that fall within the Carter exception are not criminal acts and will not be prosecuted. Physician-assisted death also includes the actions of the broader health care team, such as nurse practitioners, registered nurses, pharmacists, and other health care workers who are needed to properly carry out physician-assisted death."
O.P. is over the age of 50, and has a rapidly growing tumour, the court filing says, and three physicians say he meets the Supreme Court criteria for an assisted death. "He has reached a point where the suffering he experiences as a result of his grievous and irremediable medical condition is intolerable. His life expectancy is estimated to be no greater than three months, and he is at risk of imminently losing capacity," Mr. Faith says in court documents.
Ontario has issued a public statement that physicians need to inform the Office of the Chief Coroner of any assisted death in which they are involved. Mr. Faith argues that the mandatory involvement of the coroner violates his client's right to privacy. For instance, the coroner's involvement means "assisted death" would be listed on his death certificate, Mr. Faith says in the filing.
Mr. Faith says what he is asking for is different than what Superior Court judges granted in more than 15 cases in several provinces between Feb. 6 and June 6. During that period, the Supreme Court had asked judges to authorize an assisted death in cases that fit the definition from the Carter case. The Supreme Court established that process for four months when it extended the time-frame for the government to pass a law on assisted dying. The deadline passed on June 6 without a new law, leaving medical workers in some provinces uncertain whether they would be charged if they help someone die.