Practice Advisory – Application for Judicial Authorization of Physician Assisted Death

IMPORTANT NOTICE

This notice has been superseded by Chief Justice Morawetz. Please see the Notices and Orders tab and for current information.

In Carter v. Canada (Attorney General), 2016 SCC 4, the Supreme Court of Canada directed that applications may be brought to provincial superior courts for exemptions from the Criminal Code prohibition against physician assisted death, in accordance with the criteria set out in Carter v. Canada (Attorney General), 2015 SCC 5 [Carter (2015)].

This Practice Advisory is intended to provide guidance to counsel and parties who intend to bring applications to the Superior Court for an exemption to the Criminal Code prohibition against physician assisted death. The direction provided in this advisory is always subject to any orders made by the presiding judge on the application. In addition, this Practice Advisory refers to the types of evidence discussed in Carter (2015) to assist counsel and parties. However, the onus rests with the applicant to confirm and meet the evidentiary requirements set out in Carter (2015).

Commencement of Application

1. An application to the Superior Court of Justice for authorization for a physician assisted death shall be commenced by notice of application under Rule 14 of the Rules of Civil Procedure and be in accordance with this Practice Advisory.

Content of Notice of Application

2. The notice of application shall state that the application shall be heard by a judge on a date to be fixed by the registrar at the place of hearing, such date not being earlier than fifteen days after the application is commenced and not being later than thirty days after the application is commenced. Depending upon the circumstances, certain applications may be heard sooner on an emergency basis. The nature of the relief sought on the application must be brought to the attention of the registrar by the applicant at the time of filing so that a hearing date within these time periods, or sooner, can be fixed.
3. The notice of application shall state,
   1. that the applicant is seeking authorization for a physician assisted death;
   2. the date of the hearing as set by the registrar;
   3. the place of the hearing; and
   4. the documentary evidence to be used at the hearing of the motion.
4. In addition, the notice of application should set out if the applicant intends to seek a publication ban, an order under s. 135 of the Courts of Justice Act to have the application heard in the absence of the public, or an order to seal the file, as well as the grounds upon which any such orders are sought.

Application Record and Factum

5. As required under Rule 38,
   1. the applicant shall serve and file an application record and factum at least seven days before the hearing;
   2. the respondent(s) shall serve and file a factum and respondent(s)’s application record (if any), at least four days before the hearing.

Proof of Service

6. Proof of service of the notice of application, application record, and factum shall be filed at least seven days before the hearing date in the court office of the place of hearing.

Service of Application

7. The notice of application shall be served on,
   1. the Attorney General of Canada; and
   2. the Attorney General of Ontario.
8. In addition, depending upon the circumstances of the applicant, the Court may require that notice of the application be served on the applicant’s spouse/partner, children, parents, grandparents, siblings, and any other person who will be affected by the order sought.

Evidence about the Applicant

9. The application record should include an affidavit from the applicant concerning,
   1. the applicant’s birth date;
   2.  the applicant’s place of residence and the duration of that residency;
   3. the applicant’s medical condition (illness, disease, or disability);
   4. whether as a result of his or her medical condition, the applicant is suffering enduring intolerable pain or distress that cannot be alleviated by any treatment acceptable to the applicant;
   5. the reasons for the applicant’s request for an authorization of a physician assisted death;
   6. whether the applicant commenced the application after having been fully informed about his or her medical condition (illness, disease, or disability), diagnosis, prognosis, treatment options, palliative care options, the risks associated with the treatment and palliative care options, and the risks associated with a physician assisted death;
   7. the manner and means and timing of the physician assisted death for which the applicant seeks an authorization;
   8. whether the applicant is aware that his or her request for an authorization for a physician assisted death may be withdrawn at any time; and
   9. whether the applicant is aware that if the authorization is granted, the decision to use or not use the authorization is entirely the applicant’s decision to make.

Evidence of the Attending Physician

10. The application record should include an affidavit from the applicant’s attending physician addressing whether,
    1. the applicant has a grievous irremediable medical condition (illness, disease, or disability) that causes suffering;
    2. as a result of his or her medical condition, the applicant is suffering enduring intolerable pain or distress that cannot be alleviated by any treatment acceptable to the applicant;
    3. the applicant was fully informed about his or her medical condition (illness, disease, or disability), diagnosis, prognosis, treatment options, palliative care options, the risks associated with the treatment and palliative care options, and the risks associated with a physician assisted death;
    4. the applicant has the mental capacity to make a clear, free, and informed decision about a physician assisted death;
    5. the applicant is or will be physically incapable of ending his or her life without a physician assisted death;
    6. the applicant consents without coercion, undue influence, or ambivalence to a physician assisted death;
    7. the applicant is aware that his or her request for an authorization for a physician assisted death may be withdrawn at any time;
    8. the applicant makes the request for authorization for a physician assisted death freely and voluntarily; and
    9. the applicant is aware that if the authorization is granted, the decision to use or not use the authorization is entirely the applicant’s decision to make.

Evidence of the Consulting Psychiatrist

11. The application record should include an affidavit from the applicant’s consulting psychiatrist addressing whether,
    1. the applicant has a grievous irremediable medical condition (illness, disease, or disability) that causes the applicant to suffer;
    2. the applicant has the mental capacity to make a clear, free, and informed decision about a physician assisted death;
    3. the applicant consents without coercion, undue influence, or ambivalence to a physician assisted death;
    4. the applicant is aware that his or her request for an authorization for a physician assisted death may be withdrawn at any time;
    5. the applicant makes the request for authorization for a physician assisted death freely and voluntarily; and
    6. the applicant is aware that if the authorization is granted, the decision to use or not use the authorization is entirely the applicant’s decision to make.

Evidence of Physician Proposed to Assist Death

12. The application record should include an affidavit from the physician who is proposed to be the physician authorized to assist death, who may be the applicant’s attending physician or another physician, addressing,
    1. the manner and means and timing of the physician assisted death;
    2. whether the physician providing assistance is willing to assist the applicant in dying if that act were authorized by court order;
    3. whether the physician believes that his or her providing assistance would be clearly consistent with the applicant’s wishes; and
    4. whether the physician understands that the decision to use or not use the authorization is entirely the applicant’s decision to make.

Disposition of Application

13. On the hearing of the application, the judge may grant the relief sought, dismiss or adjourn the application for further evidence to be filed, or make such other order as is just.

January 29, 2016

Heather J. Smith
Chief Justice
Superior Court of Justice (Ontario)