to give prognosis of remaining lifespan — Criminal Code, R.S.C. 1985,
c. C-46, s. 241.2(2)(d).
The applicant was almost 80 years old and had suffered from osteoarthritis
for 25 years. Her condition was incurable, was deteriorating and had become
unbearably painful, but was not imminently terminal. She spoke to Physician
A about medical assistance in dying, and was referred to Physician 1. Physician 1 concluded that the applicant met all the criteria set out in s. 241.2(1) of
the Criminal Code, deposed that the applicant’s death was reasonably foreseeable and was prepared to provide assistance. The applicant hoped that Physician A would be her second assessor and confirm that she was eligible for
medical assistance in dying, but Physician A refused to do so as he was of the
view that her natural death was not reasonably foreseeable. The applicant was
assessed by Physician 2, who confirmed her eligibility for medical assistance in
dying. However, Physician 1, after discovering that Physician A believed that
the applicant’s natural death was not reasonably foreseeable, was no longer
prepared to assist her because of a perceived risk of being charged with murder, even though it was Physican 1’s view that the applicant’s death was
reasonably foreseeable. Physican 1 was concerned that, in light of the disagreement among the doctors, if he made an error in his interpretation of the
phrase “reasonably foreseeable”, he could be charged with murder. The applicant brought an application for a declaration that she met the criteria in the
Code for medically assisted death and for related relief.
Held, a declaration that the applicant’s natural death was reasonably foreseeable should be granted.
The application was misconceived. It is not the legislation that precluded her
being able to obtain assistance in dying but, rather, it was Physician 1’s misapprehension about the regime created by Bill C-14. Since the passage of that legislation,
it was for the medical profession, not the court, to determine whether a person met
the criteria for medical assistance in dying. However, it was possible for the court to
grant a declaration that the applicant’s natural death was “reasonably foreseeable”
within the meaning of s. 241.2(2)(d) as a matter of statutory interpretation. To do so
would not amount to granting a constitutional exemption and would not interfere
with prosecutorial discretion. The words “natural death has become reasonably
foreseeable” in s. 241.2(2)(d) are modified by the phrase “taking into account all of
their medical circumstances, without a prognosis necessarily having been made as
to the specific length of time that they have remaining”. Natural death need not be
imminent. What is a reasonably foreseeable death is a person-specific medical
question to be made without necessarily making, but not necessarily precluding, a
prognosis of the remaining lifespan. The language of s. 241.2(2)(d) encompasses,
on a case-by-case basis, a person who is on a trajectory toward death because he or
she (a) has a serious and incurable illness, disease or disability; (b) is in an
advanced state of irreversible decline in capability; and (c) is enduring physical or
psychological suffering that is intolerable and that cannot be relieved under conditions that they consider acceptable. There may be cases of doubt about the ambit of
s. 242.2(2)(d), but this case, involving an almost 80-year-old woman in an advanced
state of incurable, irreversible, worsening illness with excruciating pain and no
quality of life, was not one of them.
Bentley (Litigation guardian of) v. Maplewood Seniors Care Society, [2015]
B.C.J. No. 367, 2015 BCCA 91, 3 E.T.R. (4th) 175, 381 D.L.R. (4th) 454,
68 B.C.L.R. (5th) 136, [2015] 6 W.W.R. 252, 368 B.C.A.C. 188, 250 A.C.W.S.
(3d) 347, affg [2014] B.C.J. No. 181, 2014 BCSC 165, 97 E.T.R. (3d) 83,
[2014] 7 W.W.R. 808, 237 A.C.W.S. (3d) 812; London Health Sciences Centre
