E.F. v. Canada (Attorney General) et al., [2016] A.R. TBEd. MY.066

• Judge: Costigan, Paperny and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 12, 2016
• Citations: [2016] A.R. TBEd. MY.066;2016 ABCA 155

Can. (A.G.) v. E.F., [2016] A.R. TBEd. MY.066

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2016] A.R. TBEd. MY.066

The Attorney General of Canada and the Attorney General of British Columbia (appellants) (defendants/respondents) v. E.F. (respondent) (plaintiff/applicant) and The Attorney General of Alberta (not a party to the appeal/respondent)

(1601-0116-AC; 2016 ABCA 155)

Indexed As: E.F. v. Canada (Attorney General) et al.

Alberta Court of Appeal

Costigan, Paperny and Rowbotham, JJ.A.

May 17, 2016.

Summary:

E.F. applied for judicial authorization entitling her to access physician assisted death. As the doctor who was prepared to assist E.F. practiced in British Columbia, E.F. gave notice to the Attorney General of British Columbia, in addition to the Attorneys General of Canada and Alberta.

The Alberta Court of Queen's Bench allowed the application. The Attorneys General of Canada and British Columbia appealed.

The Alberta Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Health - Topic 1402

Physician assisted death - General - Conditions precedent - EF, aged 58, endured chronic and intolerable suffering as a result of a medical condition diagnosed as "severe conversion disorder" (classified as a psychogenic movement disorder) - She suffered from involuntary muscle spasms that radiated from her face through the sides and top of her head and into her shoulders, causing her severe and constant pain and migraines - Her eyelid muscles had spasmed shut - Her digestive system was ineffective - She had significant trouble sleeping and, because of her digestive problems, had lost significant weight and muscle mass - She was non-ambulatory - Her quality of life was non-existent - While her condition was diagnosed as a psychiatric one, her capacity and cognitive ability to make informed decisions, including providing consent to terminating her life, were unimpaired - She deposed that she was not depressed or suicidal, but "simply exhausted after years of suffering indescribable pain" - Medical opinion evidence confirmed that EF was not suffering from depression and was able to and was voluntarily consenting - Her mental competence was not disputed - EF applied for judicial authorization entitling her to access physician assisted death in accordance with the criteria established in Carter v. Attorney General (S.C.C. 2015) - A Queen's Bench judge granted the application - The Alberta Court of Appeal upheld the decision on appeal - The constitutional exemption granted in Carter did not require that the applicant be terminally ill to qualify - Further, persons suffering psychiatric conditions and who otherwise complied with the Carter criteria were not excluded from the ambit of the constitutional exemption.

Health - Topic 1403

Physician assisted death - General - Evidence - The applicant applied pursuant to Carter v. Attorney General (2016 S.C.C.) for judicial authorization entitling her to access physician assisted death on the basis that she met the criteria established in Carter v. Attorney General (2015 S.C.C.) - The Alberta Court of Appeal stated that "the motions judge is not called upon to inquire into whether a claimant has established an individual case for a personal constitutional exemption; the task of the authorizing court is limited to determining whether a particular claimant satisfies the criteria established in Carter 2015 so as to qualify for the exemption already granted by the Supreme Court. Accordingly, the constitutional dimensions and debate inherent in the granting of a personal constitutional exemption do not form part of the inquiry in an application under Carter 2016. The authorization hearings are not intended as requests for exemptions. These are not individual constitutional challenges. The question the Supreme Court has directed the superior courts to answer in these applications is whether the applicant falls within the identified group. This limited inquiry is individual and fact-specific." - See paragraphs 23 and 24.

Health - Topic 1403

Physician assisted death - General - Evidence - [See Practice - Topic 8800 ].

Health - Topic 1404

Physician assisted death - Practice and procedure - Jurisdiction - [See first Health - Topic 1403 ].

Health - Topic 1414

Physician assisted death - Practice and procedure - Parties (incl. role of) - EF applied for judicial authorization entitling her to access physician assisted death in accordance with Carter v. Canada (Attorney General), 2015 SCC 5 (Carter 2015) - As the doctor who was prepared to assist EF practiced in British Columbia, EF gave notice to the Attorney General of British Columbia, in addition to the Attorneys General of Canada and Alberta - The Alberta Court of Queen's Bench allowed the application - The Attorneys General of Canada and British Columbia appealed - The Alberta Court of Appeal discussed the proper role of the Attorney General on authorization applications - The court stated that "It is the superior courts, not the Attorneys General, that are tasked with being the gatekeeper in an authorization application." - The court held that it was not in the public interest to have the Attorney General of Canada assume the role of adversary when she was not satisfied that the application met the Carter 2015 criteria - The court stated that "It is the role of the motions judge to carefully review the evidence before her and determine, on a balance of probabilities, whether the criteria in Carter 2015 have been met." - The court also questioned why it was necessary to put the applicant to the test on appeal, particularly where the primary issue was fact-finding - The court also stated that "Moreover, although draft legislation, in the form of Bill C-14, is currently in the legislative process, there is no legislation that is the subject of constitutional review. Issues that might arise regarding the interpretation and constitutionality of eventual legislation should obviously wait until the legislation has been enacted." - See paragraphs 70 to 72.

Practice - Topic 255.1

Persons who can sue and be sued - Government - Attorney General - [See Health - Topic 1414 ].

Practice - Topic 8800

Appeals - Duty of appellate court regarding findings of fact by a trial judge - EF applied for judicial authorization entitling her to access physician assisted death in accordance with Carter v. Canada (Attorney General), 2015 SCC 5 (Carter 2015) - As the doctor who was prepared to assist EF practiced in British Columbia, EF gave notice to the Attorney General of British Columbia, in addition to the Attorneys General of Canada and Alberta - The Alberta Court of Queen's Bench allowed the application - The Attorneys General of Canada and British Columbia appealed - The Alberta Court of Appeal stated that "The first two issues on appeal - whether the criteria set out in Carter 2015 and, therefore, the constitutional exemption granted in Carter 2016, include only those with terminal illnesses, and whether they can apply to those with psychiatric conditions - require us to consider the proper interpretation and application of the Supreme Court's decision in Carter 2015. These are questions of law to which a standard of review of correctness applies." - The third issue was whether the medical evidence presented to the motions judge was sufficient to support the conclusion that EF had a grievous and irremediable medical condition that caused her enduring suffering that was intolerable to her (i.e., the Carter criteria) - In particular, British Columbia argued that there was insufficient psychiatric evidence that EF's condition was "irremediable" - The court held that this issue should be reviewed on a standard of palpable and overriding error - However, if there was no evidence to support a particular finding, this would amount to an error in principle warranting appellate intervention - See paragraphs 14 to 26.

Practice - Topic 8800.2

Appeals - General principles - Duty of appellate court regarding findings of law - [See Practice - Topic 8800 ].

Counsel:

B. Hughson and C. Regehr, for the appellant, The Attorney General of Canada;

L. Greathead, for the appellant, The Attorney General of British Columbia;

T.D. Carey, for the respondent.

This appeal was heard on May 12, 2016, by Costigan, Paperny and Rowbotham, JJ.A., of the Alberta Court of Appeal. The Court of Appeal delivered the following memorandum of judgment at Calgary, Alberta, on May 17, 2016.