Health law practitioner Lisa Corrente of Toronto’s Torkin Manes said issues highlighted in the H.S. ruling raise questions “regarding whether it will be more challenging for Ontario applicants to meet the Carter criteria for a constitutional exemption.”
“Ontario appears to be the only province within Canada that suggests including evidence from a psychiatrist in the application,” she noted by e-mail. “The British Columbia protocol requires affidavits from the applicant and two physicians. The Quebec legislation does not require any affidavit evidence. In H.S., the court held that it was entitled to take a ‘flexible approach’ to the evidence in that kind of application, and accepted two affidavits sworn by the applicant attaching letters from physicians as exhibits. Further, given our practice advisory’s suggestion that the application include psychiatric evidence, a question arises as to whether Ontario courts will consider depression as part of determining the applicant’s competence.”
Corrente said access to justice is an issue in applications for physician-assisted death. “If Ontario proceedings will be more onerous and complex, it raises concerns about legal costs becoming too prohibitive for some applicants and their families.”
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