On Monday, March 1st, 2016, Madam Justice S. L. Martin of the
Court of Queen's Bench of Alberta granted the
application of a Calgary woman to seek physician-assisted
death. The application arose as a result of the Supreme Court's
offer of personal exemptions from a four month extension of the
suspension of its declaration that provisions of the Criminal
Code of Canada forbidding physician-assisted death were
The application was brought by, and on behalf of, a retired
psychologist suffering in the end stages of ALS, which is a
degenerative neurological disease which causes increased weakness
of the majority of the body's muscles ultimately causing
paralysis. The disease is progressive, not treatable and ultimately
The Court had many questions to answer before dealing with the
primary issue, that being whether the applicant was a competent
adult person who consents to the termination of her life, suffering
from a grievous and irremediable medical condition which causes
enduring, intolerable suffering in her particular circumstances
which could not be alleviated by any treatment acceptable to her.
Specifically, given that the Alberta Courts (unlike Ontario and
British Columbia) had not provided any specific guidelines for
applications like this, preliminary issues such as appropriate
notice; jurisdiction; confidentiality; and sufficiency of evidence
needed to be addressed.
The Court found that although the application was not
technically a constitutional one, notice to the provincial and
federal attorneys general was appropriate, following guidance from
the practice guidelines in Ontario. It also found that while in
some circumstances notice to family members may be appropriate, in
this instance that was not the case.
In terms of jurisdiction, the Court was faced with the prospect
of the applicant seeking assistance in death at a private location
in British Columbia. Nevertheless, the Court found that the
residence of the applicant, not the intended location of death, was
the governing principle and found that it had the necessary
jurisdiction to grant the Order.
On the issue of confidentiality, while the Court was mindful of
the important reasons underlying the principle of open court, it
felt that the privacy interests of the applicant (given the
sensitive nature of the proceedings and the evidence) outweighed
the interests of the public, and felt that the issuance of written
reasons (with identities concealed) would satisfy any public
On the issue of the nature of the evidence, the Court relied on
the Quebec legislation dealing with assistance in dying; the
Ontario and B.C. Practice Guidelines; but most importantly, the
decision of the Trial Judge and the Supreme Court of Canada in the
Attorney General decision in reviewing the nature of the
evidence. It determined that unlike Quebec or Ontario, no
psychiatric evidence was specifically required in the absence of
concerns regarding mental illness. It also determined that there no
hard and fast requirement for affidavit (i.e. sworn) evidence from
physicians, although that would be preferable. She did find that it
was appropriate to have evidence (even in the form of statements)
from not only the physicians assessing the patient, but the
physician(s) who would actually provide the assistance in
Finally, it determined that the assessment of competence was
required to be relevant as of the time of the granting of the
order, not necessarily at the time of death (although in this
regard, she was comforted by the fact that the assisted death was
intended to occur within a relatively short time frame).
Justice Martin was satisfied on the evidence provided that the
applicant met the tests outlined by the Supreme Court in Carter
vs. Canada (Attorney General) and granted the application.
The Order granted was remarkable, in that the Judge extended the
protection from the Supreme Court's declaration not only to the
physicians involved in the assessment and the actual act of
assistance but as well to the pharmacists who provided the
medication and (although not specifically required) potentially to
other caregivers such as nurses who, collectively, were part of the
term "physician-assisted death".
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