Ontario Courts Release Practice Advisory on Physician-Assisted Death

February 9, 2016 Umair Ethical Issues, General Interest, Health / Medical, In the News, Litigation, News & Events Tags: , , , , 0 Comments

As lawmakers continue to formulate a legislative response on the issue of physician-assisted death, the Ontario Superior Court of Justice has released a practice advisory for interim applications seeking judicial authorization.

As my colleague Lisa Haseley recently noted on this blog, the Supreme Court of Canada suspended the declaration that sections 241 and 14 of the Criminal Code were of no force and effect for a period of 12 months, and the one-year deadline was set to end on February 6, 2016. The Attorney General of Canada subsequently sought a six-month extension of the suspension. In its decision in Carter v Canada, 2016 SCC 4, released on January 15, 2016, the Court granted a four-month extension in light of the recent federal election.

However, a majority of the Court also granted an exemption for individuals who wish to exercise the right to physician-assisted death during this interim four-month period, holding that “they may apply to the superior court of their jurisdiction for relief in accordance with the criteria set out in para. 127 of our reasons in Carter.”

On January 29, 2016, in response to the Supreme Court’s decision, the Ontario Superior Court of Justice published Practice Advisory – Application for Judicial Authorization of Physician Assisted Suicide. The practice advisory provides guidance on the procedural steps for such an interim application for judicial authorization.

The practice advisory states that the application must be commenced by Notice of Application, pursuant to Rule 14 of the Rules of Civil Procedure. The applications would be heard no earlier than fifteen days and no later than thirty days after the application is commenced, but certain applications can be heard on an emergency basis.

The Notice of Application must be served on the Attorney General of Canada and the Attorney General of Ontario, and may need to be served on the applicant’s family members and “any other person who will be affected by the order sought” depending upon the individual circumstances of the applicant. The applicant must serve and file an application record and factum at least seven days before the hearing, and the respondents shall serve and file a factum and respondent’s application record at least four days before the hearing.

In addition to highlighting the evidence that should be included in the applicant’s affidavit, the practice advisory provides guidance on the affidavit evidence required from the applicant’s attending physician, consulting psychiatrist and the physician proposed to assist death (who may also be the attending physician).

Any Ontario parties or counsel seeking an exemption should carefully review both the practice advisory and the Supreme Court’s 2015 decision in Carter. The practice advisory notes that while it includes references to the types of evidence discussed in the decision, “the onus rests with the applicant to confirm and meet the evidentiary requirements set out in Carter (2015).”

Thank you for reading.

Umair Abdul Qadir

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