This Blog was written by Angèle LeBlanc, Estate and Trust Advisor at MD Private Trust Company which is part of Scotia Wealth Management

The Medical Assistance in Dying, Bill C-14 (MAiD) was enacted into law on June 17^th, 2016. Since then, some of us may have heard of cases where individuals, even clients, have chosen to end their life with MAiD. With every new law passed, however, litigation is certain to follow.

In 2003, an 83-year-old Nova Scotian man, initially referred to as Mr. X and subsequently identified as Mr. Sorenson, was diagnosed with COPD. By 2020, Court documents show that he had become frail and was suffering significantly from his condition. This is when he made the decision to begin the MAiD process and was granted approval to end his life with MAiD. His procedure was scheduled for July 20^th, 2020.

At the time, Mr. Sorenson had been married for almost 50 years. Although no union is completely free of differences of opinion, Mr. Sorenson would not know that his end of life wishes was one area that would ultimately end their union prior to death.  It has been reported that the couple stopped speaking when Mrs. Sorenson refused to allow her husband to peacefully end his life.  The legal battle continued with multiple motions and delays.  Mr. Sorenson was forced to delay his procedure and spend what would eventually be the last weeks and months of his life in litigation with his spouse.

Mrs. Sorenson’s argument hinged on the accuracy of the assessments undertaken by the assessors who determined that Mr. Sorenson was eligible for MAiD.  She argued that Mr. Sorenson was not competent to provide his consent as he was suffering from anxiety and delusions.  Court decisions were met with appeals from Mrs. Sorenson, up until the final appeal was heard in front of the Nova Scotia Court of Appeal.  As part of the decision¹, the Honourable Justice Bourgeois, who wrote the decision on behalf of the 3 Judge panel indicates that:

“The court concluded there is no role for courts in the review of MAID eligibility assessments.  The legislative history giving rise to the Criminal Code amendments permitting MAID establishes that Parliament considered, and rejected, a role for judges in the pre-approval or review of MAID eligibility assessments.  Parliament made clear that role rests with approved healthcare assessors.”

The decision also cites the Adult Capacity and Decision-making Act², where section 4 indicates that:

“An adult is entitled to make his or her own decisions, unless the adult’s incapacity to do so is clearly demonstrated;” 

Although courts are regularly brought in to determine the mental capacity of individuals in various cases, they’ve made it clear that they will not provide a review of the MAiD eligibility assessments.  Those determinations rests with the medical professionals who have the proper expertise to provide capacity assessments.

One can only assume Mr. Sorenson never expected to spend the last months of his life in a litigation battle with his wife. On October 3^rd, 2020, however, Mr. Sorenson was able to proceed with his wish and closed his eyes peacefully, for the last time.

The court decisions in their entirety can be found at:

1. Y v. Swinemar, 2020 NSCC 225 (CanLII);
2. v. Swinemar, 2020 NSCA 57 (CanLII);
3. Sorenson v. Swinemar, 2020 NSCA 62 (CanLII).