On January 15, 2016, the Supreme Court of Canada granted the
Attorney General a further four month extension of the suspension
of invalidity of the Criminal Code provisions relating to
physician-assisted death, i.e., to June 6, 2016. In addition, the
Court allowed individuals to bring an application to the Superior
Court of Justice for an order that would authorize a
physician-assisted death during the four month extension. On
January 29, 2016, the Ontario Superior Court released a practice direction on what will be required
for that Court to hear such an application and grant the relief
In order to bring an application, the individual must file
evidence in the form of affidavits from:
the applicant seeking the relief, with background biographical
information, medical conditions, the reasons for the
applicant's request (addressing the criteria set out in the
Carter case), the manner, means and timing of the assisted
physician death, and whether the applicant is aware that this
request may be withdrawn at any time.
the applicant's attending physician, with evidence about
the grievous irremediable medication condition, the applicant's
suffering as a result of the medical condition, the applicant's
mental capacity, whether or not the applicant is or will be
physically incapable of ending her life, and whether the applicant
is aware that she may withdraw the request at any time.
a consulting psychiatrist who attests to, among other things,
whether the patient has the mental capacity to make a clear, free
and informed decision about physician-assisted death.
the physician who will be authorized to assist the
applicant's death, who may be the attending physician or
another physician. This affidavit would address, among other
things, the manner and means and timing of the physician assisted
death, whether the physician is willing to assist the applicant in
dying, whether the physician believes that his or her providing
assistance would be clearly consistent with the applicant's
wishes and whether the physician understands that the decision is
entirely the applicant's to make.
We note that the Interim Guidance Document from the College of
Physicians and Surgeons and the Canadian Medical Association's
Recommendations do not require that the second opinion be from
a psychiatrist but rather just from another physician. The
requirement for a psychiatric opinion is, however, in line with the
process outlined by Justice Lynn Smith of the British Columbia
Supreme Court when she carved out a specific exemption for Gloria
Taylor, one of the plaintiffs in the Carter case, so that
she would not have to wait out the appeal process should she desire
a physician-assisted death.
Who must be provided with notice of the application?
Importantly, the Ontario Superior Court has further directed
that the application must be served on the Attorney General for
Canada and the Attorney General for Ontario. In addition, depending
on the circumstances, the Court may require that a notice
of the application be served on the applicant's spouse or
partner, children, parents, grandparents, siblings or any other
person who will be affected by the order sought. Such notice is
beyond that contemplated by Justice Smith in the Carter
case, as she did not require that any notice be given of the
application other than to the Court. It remains to be seen whether
the federal or Ontario Attorneys General will participate in any
hearing upon being provided with notice, and under what
circumstances the Court will require that notice be provided to
How, if at all, will the applicant's privacy be protected
if so desired?
Another unique feature of the Ontario Superior Court's
practice direction is a requirement that the notice of application
should set out if the applicant intends to seek a publication ban,
an order to have the application heard in the absence of the
public, or an order to seal the file, as well as the grounds for
seeking such an order. It is notable that the practice direction
does not require that the media be put on notice of the
request. This suggests that the Court is at least open to
taking steps to preserve the very private nature of the situation
if asked, although it is not yet clear that they would in fact take
these steps. This might also underlie the Court's decision to
require that the Attorneys General be notified of the application,
so that the governments' position on this public interest issue
may be brought to bear.
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