It was the judicial rebuke that seriously weakened the federal government’s shaky attempts to erect unfair barriers to assisted dying.
The Alberta Court of Appeal ruled on Tuesday that the government violates the Supreme Court’s game-changing ruling in last year’s Carter v. Canada case by trying to limit assisted dying to the terminally ill, according to a report by The Canadian Press.
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A panel of three court judges made the ruling in the case of E.F., an Alberta woman who applied for a judicial exemption to the ban on physician-assisted dying last month. The 58-year-old woman, who suffers from a psychiatric condition called severe conversion disorder, has a "non-existent" quality of life because of "severe and constant" migraines and bodily pain. Under the guidelines put forward by the top court, she was found to be eligible for an assisted death and was granted an exemption on May 5.
But the federal government appealed the decision on the basis that E.F.'s prognosis is not terminal and her underlying medical condition is psychiatric in nature. As evidenced by its needlessly restrictive Bill C-14, the federal government has continually drawn a hard line on assisted dying, making the case that only those whose natural death is “reasonably foreseeable” can qualify and excluding those with psychiatric conditions.
The Alberta appeal court responded with a scathing dismissal, saying the federal government is not in compliance with Carter when it attempts to prevent people with psychiatric conditions from seeking assisted deaths. The three judges said the Liberal government’s rationale for appealing E.F.'s case “is not supported by the words of the decision as a whole, nor by the principles articulated in the decision.” The judges concluded that "there is no question" E.F. is eligible for assisted dying based on the guidelines put forth by the Supreme Court.
They added, “Given the importance of the interests at stake, it is not permissible to conclude that certain people, whose circumstances meet the criteria set out in the Carter 2015 declaration, and who are not expressly excluded from it, nevertheless can be inferentially excluded.”
“It is not appropriate, in our view, to revisit these issues, which were considered at length and decided by the Supreme Court in Carter 2015,” they said.
A clear choice
Dying With Dignity Canada (DWDC) says the ruling should prompt the Liberal government to reconsider its assisted dying bill. “The Alberta court’s decision confirms what assisted dying advocates have been saying for weeks: that the government is offside in its cruel, discriminatory approach to choice in dying,” said DWDC CEO Shanaaz Gokool. “With this ruling, it’s become perfectly clear that Bill C-14 must not be passed in its current form. To do so would force desperately ill patients like E.F. to slog through the court system in order to access what is ultimately their right to die in peace and with dignity.”
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The Alberta appeal panel specifically highlighted that the top court did not require individuals to be terminally ill in order to access assisted dying. “The decision itself is clear,” the appeal court said. “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.”
Along with throwing cold water on the federal government’s reasoning for its restrictive stance, the court also raised concerns over the feds’ decision to appeal E.F.’s court-ordered exemption in the first place.
The three judges said the Supreme Court “did not intend [the exemptions] to be an adversarial process. Can it be said to be in the public interest to have the Attorney General of Canada (Jody Wilson-Raybould) assume the role of adversary when she is not satisfied that the application meets the Carter 2015 criteria? We do not think so.”
The timing of the appeal also raises troubling questions about the government’s objectives in attempting to deny the Alberta woman relief from her suffering, Gokool added. “We sincerely hope the Attorney General’s actions were motivated by a real concern for the applicant, and not by a desire to quash legitimate questions about the government’s approach to the legalization of medical assistance in dying,” she said. “Either way, the government has a clear choice now: either amend Bill C-14 or abandon it.”
For the Liberal government, the judgment could not have come at a worse time: its problematic and controversial Bill C-14 is expected to go to a free vote in the House of Commons this week.
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