Will an injunction stop a medically-assisted death?
Canadians have been able to legally access medical assistance in dying since 2016. Several court challenges since then have pushed for a more generous interpretation of the law. A recent Nova Scotia case sought to reign in one of the criteria but was notable for the court declining to extend an injunction while the lower court decision was appealed.
The 2016 federal law on medical assistance in dying (“MAiD”) was enacted after the Supreme Court delivered its decision in the important case Carter v Canada in 2015. Since then, Parliament has reviewed the law and in February 2020, proposed further changes which would respond to, among other concerns, a 2019 decision of the Superior Court of Quebec regarding the criterion that a person’s natural death must be reasonably foreseeable.
The Nova Scotia case grabbed national headlines when it was released last month, which challenged the criterion of a “grievous and irremediable” medical condition. In that case, the lower court declined to issue an injunction barring the scheduled procedure.
A review of the facts:
The applicant, Y, is the wife of X, the 83-year-old man who requested MAiD. They have been married for almost 50 years. X suffers from end-stage chronic obstructive pulmonary disease. He had been assessed by two qualified medical professionals who determined he qualified for MAiD; all the safeguard procedures had been followed. He was determined to be capable to make this decision. However, Y challenged the results of the assessments based on her belief of his incapacity.
Procedural history:
Y filed an application for an ex parte injunction (without notice to other parties) on July 31st. She understood the procedure to be scheduled for August 4th. While the injunction was granted, the judge ordered X to be served and for the parties to return the following week. The next week, August 7th, the parties all agreed to forgo cross-examinations and to proceed on the materials filed. The judge heard the parties and continued the injunction until he rendered his decision on August 14th.
The lower court decision:
In order to grant an injunction, a judge must be satisfied that there is a serious issue to be tried; the party asking for the injunctive relief will suffer irreparable harm if it is not granted; and that the balance of convenience favours granting an injunction. The first two parts of the test were clearly satisfied.
The decision came down to the balance of convenience. After weighing all the evidence before him, the judge decided that the harm X would suffer if the injunction were granted is significantly greater than the harm Y would suffer.
The same day, the applicant filed her Notice of Appeal and requested a stay of the lower court’s order until the appeal hearing. The effect of a stay would be the same as if the lower court had granted the injunction, and the appeal court declined to do so for that reason. The result may be that the person receives his medically-assisted death before the appeal is decided. Y asked the court to review this decision, however, the court refused, stating that even if X dies in the meantime, it does not necessarily mean the appeal is moot.
The Nova Scotia Court of Appeal heard the case yesterday. According to the Canadian Press, one of Y’s grounds of appeal is that there was no opportunity to cross-examine medical experts. X’s lawyer argued that it is not the courts’ role to substitute their own opinion for medical expert opinion, particularly when X had met the criteria under the law.
Thank you for reading.
ABOUT THE AUTHOR
Areta Lloyd practices estates, trusts and capacity litigation and maintains a niche in health law.
Phone: 416.927.0891 ext. 144
Email: alloyd@dicksonappell.com