The Supreme Court of Nova Scotia has drawn up rules for dealing with the issue of physician-assisted death for those who don't want to wait until the federal government comes up with legislation later this year.

The court released a draft memorandum on Friday in response to the so-called Carter decision last year by the Supreme Court of Canada, which declared sections of the Criminal Code dealing with this issue to be unconstitutional.

Canada's highest court suspended the impact of its decision until June 6, 2016, to give the federal government time to draft new legislation.

Its ruling gives other superior courts — such as Nova Scotia's Supreme Court — the power to take action in the interim to help those people who feel they can't wait until politicians sort it out.

The Nova Scotia Supreme Court is inviting lawyers, prothonotaries and the public to comment on its memorandum. It will be discussed by the court's rules committee later this month.

The whole court will discuss the issue at a meeting set for May 12.

Requirements and responses

"I think it's great that the Supreme Court of Nova Scotia is thinking proactively to how they're going to respond to any people that may be seeking an assisted death during this interim period," said Shanaaz Gokool, CEO of Dying with Dignity Canada. 

"Our concern is that it likely won't be reviewed until May 12, which is only a few weeks before June 6."

The draft memorandum spells out the steps applicants in Nova Scotia will have to follow if they want to ask a physician to help them or a family member to die.

SCOC Assisted Dying 20150206

The memo is in response to the so-called Carter decision last year by the Supreme Court of Canada, which declared sections of the Criminal Code dealing with doctor-assisted death to be unconstitutional. (Sean Kilpatrick/Canadian Press)

The memo even has provisions for a judge to make a decision without consulting all family members.

While court proceedings are generally open to the public and news media, the memorandum says parties can ask for a confidentiality order covering their application.

This week, a Calgary woman ended her life after receiving a legal exception to do so from an Alberta judge. 

"[The Nova Scotia memo] does provide guidance so lawyers can be very clear if they have a client that meets the eligibility criteria," Gokool said, adding that Alberta doesn't have a set of guidelines for doctor-assisted death. 

"But we would also suggest that any other judge should look to Alberta court and look at the court documents and how they've come to their decision."

The guidelines

The new Nova Scotia guidelines set out the proof an applicant must supply a judge in order to request permission for a physician-assisted death:

  • That he or she is a competent adult.
  • The applicant desires the termination of his or her life, to the extent of giving a clear consent without undue influence.
  • She or he has a grievous and irremediable medical condition that may be an illness, disease or disability.
  • The medical condition causes enduring suffering that is intolerable to the applicant in the circumstances of his or her condition.
  • The court memorandum says applicants must be prepared to back up each of these points with direct proof and corroborating evidence.

The memorandum also recognizes that the College of Physicians and Surgeons of Nova Scotia is also trying to come up with guidelines on the issue of assisted dying. The college's proposed guidelines would require input from two independent doctors.

The court's memorandum says the physician who may be authorized to assist the patient should be prepared to tell the court the manner and timing of the assisted death and proof that the doctor is willing to participate.

For Gokool, as long as the memorandum doesn't create more problems than it fixes, she believes Nova Scotia will remain on the progressive side of the Carter decision. 

"I would hope that if somebody comes forward in the next couple of weeks looking to make a court application for an assisted death, that this draft practice memorandum would still stand and that somebody would not have to wait until the practice advisory is issued," she said.