N.S. Appeal Court hears case of woman trying to stop husband from medically assisted death

Lawyers for a Nova Scotia woman trying to stop her husband from proceeding with a medically assisted death argued before the province's highest court Thursday that a lower court ruling not in her favour should be overturned.

The 82-year-old woman from Bridgewater, N.S., first brought the case to Nova Scotia Supreme Court at the end of July, seeking an injunction against her husband, 83, from accessing medical assistance in dying (MAID). 

CBC News is only identifying the couple by the woman's first name, Katherine, to protect the man's privacy. He is referred to in court documents as X, and although there is no publication ban judges have not named the couple in court rulings.

The man has advanced chronic obstructive pulmonary disease (COPD) and says he's near the end of his life because of the condition. His wife says his wish to die is not based on physical illness but anxiety and mental delusions.

When Katherine first filed with the Nova Scotia Supreme Court, a judge issued a temporary injunction that lasted through the early court proceedings. But she also sought an interlocutory injunction to extend until a full hearing on the merits of her application. 

A judge ruled against that interlocutory injunction in August, which is the decision now under appeal. A stay motion related to the appeal was denied earlier this month, effectively allowing X to go ahead with the procedure. As of Thursday morning, he had not done so. He declined CBC's request for comment. 

Appeal Court reserves decision

At the end of the Appeal Court hearing Thursday that lasted just under two hours, Chief Justice Michael Wood, Justice Cindy Bourgeois and Justice Anne Derrick reserved their decision.

The panel of judges were in a downtown Halifax courtroom, while all other parties joined by teleconference.  

Hugh Scher, a Toronto-based lawyer representing Katherine, described to the court a series of perceived problems with the dismissal of Katherine's injunction request. He said the court relied on "hearsay opinion evidence" of medical professionals submitted in writing, and he argued there should have been an opportunity for cross-examination.

Scher said the court had an obligation to fully review the case given conflicting opinions on X's condition.

"There is a serious risk that a man could be effectively put to death in circumstances where he lacks capacity," Scher told the court.

Scher's co-counsel Bruce Campion added to their argument that the lower court was wrong in deciding that X would suffer more greatly if an injunction were granted than Katherine would suffer if it were not. 

"Once the decision is made that there will be no injunction, there is death — that is irreparable harm [and] it has to be weighed. I don't see how, to be perfectly frank, a court can weigh that issue and not come to the conclusion that the balance of convenience is a stay of the MAID operation," Campion said.

X's lawyer, Philip Romney, argued there were no grounds for an appeal.

He said the Nova Scotia Supreme Court judge who dismissed the injunction request "addressed all the important issues and actually went further than he had to go. Basically, he addressed almost the merits of the whole application."

A lawyer for the Nova Scotia Health Authority — which is a respondent in the case, along with X — also argued against the appeal, saying the Nova Scotia Supreme Court was correct in leaving decisions about eligibility for MAID exclusively in the hands of medical assessors. 

Karen Bennett-Clayton said the issue of conflicting opinions was considered during the development of Canada's MAID legislation, and it was decided that conflicts should not prevent anyone from accessing MAID.

The legislation requires two MAID assessors to agree about an individual's eligibility, but it does not limit the individual to only two assessments, and Bennett-Clayton said those points are reflected in Nova Scotia's policies.

"There are no gaps or omissions in the health authority's MAID policy," said Bennett-Clayton. 

Both Romney and Bennett-Clayton said their clients would be seeking costs for the appeal of about $5,000 each.