In a landmark ruling in February 2015, the Supreme Court of Canada (SCC) struck down the Criminal Code provisions prohibiting physician assisted suicide.  The SCC held that a competent adult who (1) clearly consents to the termination of life, and (2) has “a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition” can take his/her own life with the help of a willing physician.  However, the declaration by the SCC that the Criminal Code provisions were invalid was suspended for 12 months to February 6, 2016.

On January 15, 2016, in a 5-4 decision, the Supreme Court of Canada gave the Federal Government a further 4 months to draft and pass physician assisted legislation (16 months in total).

In its January 15, 2016 ruling, the SCC exempted Quebec’s existing legislation governing end-of-life decisions and the legislation remains in full force and effect in that province.  The SCC further directed that those who wish to seek assistance from a doctor to end their life during the 4 month extension “may apply to the superior court of their jurisdiction [i.e. province] for relief”.

The Ontario Superior Court of Justice (SCJ) was quick to act and release a Practice Advisory to “provide guidance” to counsel and parties who intend to bring a court application for an order authorizing physician assisted death during the 4 month extension period.  The highlights of the Practice Advisory are as follows:

• An application for physician assisted death must be commenced by notice of application (not, for example, by way of a statement of claim);
• The application must be heard by a judge within 15 to 30 days after it is commenced. In the appropriate circumstances, an application can be heard sooner on an emergency basis;
• The notice of application should set out if the applicant intends to seek a publication ban, exclude the public from the hearing, and/or seal the file;
• The applicant is required to serve the application on the Attorney General of Canada and the Attorney General of Ontario, along with a factum (a legal brief that sets out the facts, issues and law the applicant relies on). The factum is also filed with the court;
• The court may require the application to be served on the applicant’s spouse/partner, children, parents, grandparents, siblings and any other person who may be affected;
• The application should include a sworn statement from the applicant setting out:
  • The applicant’s birth date;
  • The applicant’s medical condition(illness, disease, or disability);
  • Whether the applicant is suffering an enduring intolerable pain or distress that cannot be alleviated by any treatment acceptable to the applicant;
  • The applicant’s reasons for seeking physician assisted death;
  • Whether the applicant has been fully informed about his/her medical condition, diagnosis, prognosis and treatment options;
  • The manner, means and timing of the physician assisted death;
  • The applicant is aware that he/she can withdraw their request for physician assisted death at any time;
• The application should include an affidavit from the applicant’s attending physician and a separate affidavit from the applicant’s consulting psychiatrist addressing whether:
  • The applicant has a “grievous irremediable medical condition” that causes suffering;
  • The applicant was fully informed about his/her medical condition, diagnosis, prognosis and treatment options;
  • The applicant has the mental capacity to make a clear, free and informed decision about physician assisted death, makes the request freely and voluntarily, and consents without coercion, undue influence or ambivalence;
• The application record should include an affidavit from the proposed physician who will assist in the death, who may be the applicant’s attending physician or another physician, setting out the manner and means of the assisted death and whether the physician believes his or her providing assistance would be clearly consistent with the applicant’s wishes;
• The judge hearing the application may grant, dismiss or adjourn the application for further evidence or make such other order as is just.

It is clear that the SCJ, through its Practice Advisory, has identified a process that sets out adequate safeguards for physician assisted death, requiring affidavits from the applicant and at least two physicians who are involved with the applicant’s care.  Those affidavits attest to the fact that the applicant is competent, has the capacity to make a free and informed decision, and understands the ramifications of the decision.  The SCJ’s Practice Advisory strives to protect the dignity of life by ensuring that coercion and undue influence are not in play and that the applicant can resile from the decision at any time.

Justin