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Alberta's highest court has dealt a strong blow to the Liberal government's proposed law on assisted death, ruling that a woman who has a psychiatric illness and is not terminally ill has a constitutional right to aid in dying.
The Liberal law says the opposite – no assisted death unless a natural death is "reasonably foreseeable," and none for those whose primary condition is psychological.
The 3-0 ruling puts the government in a tenuous position. It could appeal to the Supreme Court, which could mean delaying passage of its law until the court makes a decision. Or it could ignore the ruling and pass a law that flies in the face of the only appeal-court pronouncement, albeit an indirect one, on its main provisions.
Federal Justice Minister Jody Wilson-Raybould said Wednesday that the government would stick by its law. "The Supreme Court of Canada told us that Parliament is best placed to design a regime around medical assistance in dying with a robust set of safeguards. That is what we have done." She said the appeal court's decision was not a decision on the proposed assisted-death law.
She added that she is not ready yet to say whether the government will appeal the ruling.
The proposed new law, still being debated in Parliament, was not directly at issue before the Alberta Court of Appeal. But its substance was very much before the court in the case of E.F., a 58-year-old with a diagnosis of "severe conversion disorder" – formerly known as "hysteria" – which means she has severely disabling neurological problems with no physical explanation for them.
The Alberta Court of Queen's Bench had approved E.F.'s request for an assisted death. But the Attorneys-General of British Columbia and Canada appealed that ruling. (B.C. was involved because the doctor who is prepared to assist in E.F.'s death practises in that province, and E.F.'s lawyers notified the province of the hearing.) The Canadian government argued in its appeal that the parameters set down by the Supreme Court of Canada for a doctor-assisted death precluded individuals with a psychiatric illness and those who are not in the advanced stage of a terminal illness.
However, the judges said the government's position was out of step with the Supreme Court's actual words last year establishing a constitutional right to an assisted death for mentally competent adults suffering intolerably from a "grievous and irremediable" condition.
For instance, even by the federal government's acknowledgment, the Supreme Court set out no explicit requirement for a terminal illness. "The decision itself is clear," Justices Marina Paperny, Peter Costigan and Patricia Rowbotham said in a jointly authored ruling. "No words in it suggest otherwise. If the court had wanted it to be thus, they would have said so clearly and unequivocally. They did not."
Intolerably ill people face a cruel choice of killing themselves while they still have quality of life or suffering until dying from natural causes, the Supreme Court had said. "The cruelty in the situation is there regardless of whether the illness causing the suffering may be classified as terminal," the Alberta Court of Appeal wrote.
E.F. suffers from muscle spasms from her face and head through her shoulders, causing her constant pain and migraines; her eyelid muscles have spasmed shut, rendering her blind; her digestive system is failing and she does without food for up to two days, causing her to lose muscle mass; she needs to be carried, or use a wheelchair, the Alberta court said. "Her quality of life is non-existent."
She is mentally competent, the judges said, and neither depressed nor suicidal, but "simply exhausted after years of suffering indescribable pain." Her husband and adult children support her request, as does her doctor of 28 years.
If the government passes its law as it is, it could argue in any subsequent court challenge that it had the right to impose limits on the Supreme Court's ruling, according to Eric Adams, a constitutional specialist at the University of Alberta law school.
"It's a separate issue from, 'Is the government constitutionally able to craft a regime for assisted dying that is somewhat different, even narrower,'" than what the Supreme Court set out in its assisted-death ruling. "One thing that courts have done in other kinds of constitutional cases is say that it's not necessarily the case that the government has to follow the exact letter of a Supreme Court of Canada decision in crafting its legislative response."
The Supreme Court has given superior-court judges the right to give permission for an assisted death, until June 6. On that date, its ruling striking down a law criminalizing those who assist someone to die takes effect. There will be no process for individuals to seek judicial authorization, though they can still go directly to doctors for help in dying. Ms. Wilson-Raybould said many doctors will not feel comfortable doing so in a legislative vacuum. She said the Alberta ruling underscores the need to have a law in place by June 6.
Sean Fine