Court File and Parties

COURT FILE NO.: CV-23-00695473-0000 DATE: 20231030 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

AHMAD MOHAMMAD Plaintiff – and – GOVERNMENT OF CANADA Defendant

Ahmad Mohammad, In Person Jennifer L. Caruso, for the Defendant

HEARD: October 23, 2023

Papageorgiou J.

Endorsement

[1] Mr. Mohammad suffers from Aspergers disease as well as post-traumatic stress disorder, and autoimmune disorders which he says makes his life intolerable. He does not enjoy anything.

[2] He is a self-represented litigant.

[3] His sister attended with him and advised that she is aware of his suffering, that he spends all his time crying and in pain both mentally and physically. She says that he has been on medication and that it does not help. She confirms that his suffering is real.

[4] He sued the Government of Canada because there is an exclusion which does not permit him to access Medical Assistance in Dying (“MAID”).

[5] First, the Government of Canada sought to have his claim struck out pursuant to r.2.1 as being frivolous and vexatious.

[6] Centa J. concluded that the proceeding was not frivolous and vexatious. He said: “Read generously, the plaintiff seeks relief akin to a constitutional exemption to permit him access to the MAID regime. The hurdles he faces in seeking this relief are many and high.” Nevertheless, he concluded that “this claim, read generously, raises issues that could be placed before the court.”

[7] The Government of Canada now seeks to schedule a motion pursuant to r. 21 to strike this claim out. This proceeded to a case conference before me as per the new practice direction. The parties filed brief submissions.

[8] The proposed grounds for the Government of Canada’s motion are that the claim, even read generously, does not contain the minimally-required elements to make out a constitutional cause of action or plead facts to make out an allegation that the extended exclusion of eligibility for MAID for mental illness is unconstitutional.

[9] The Government of Canada’s case conference brief states as follows:

The Claim provides only a bare allegation that the delay in repealing the exclusion of MAID solely on the grounds of mental illness is “unconstitutional” and/or “irresponsible”. The Claim does not identify any specific provisions in the law, the specific violation under the Charter underpinning the constitutional claim nor any specific section in the Charter. Absent these critical components, even when read generously, the Claim contains no cause of action. The “irresponsible” enactment of legislation, further, is not a known cause of action in law.

[10] All of this may be true, but the reasons for these deficiencies are the fact that this is a self-represented individual.

[11] The landmark case of Carter v. Canada (Attorney General), 2015 SCC 5 considered the issue of medically assisted dying and held that laws preventing this were unconstitutional pursuant to s. 7 of the Charter.

[12] As a result the Government of Canada introduced legislation permitting MAID.

[13] The plaintiff may not know all the sections, but he has pleaded that he has a mental illness as well as other illnesses and that the exclusion of MAID for those with mental illness is “irresponsible” and “unconstitutional”. He is not a lawyer with the ability to craft legal arguments, but surely the Attorney General is aware that what he means, is that that this exclusion offends the plaintiff’s s. 7 rights.

[14] I asked counsel for the Attorney General whether any case has yet considered this issue and determined that this exclusion is constitutional. She did not refer me to any caselaw.

[15] I am not satisfied that it is appropriate at this stage to schedule a motion to strike.

[16] Instead, I am directing that the plaintiff amend his Statement of Claim to clarify all the points about which the Attorney General complains including setting out:

• The details of all of the plaintiff’s mental and physical illnesses
• If he is seeking to argue that the exclusion is unconstitutional, then the section of the Charter he relies upon;
• The specific legislation that he says is unconstitutional if that is his argument. I am directing that if he does not have the specifics of the legislative exclusion, that the Attorney General send him the citation for that.
• The details of any application for MAID that he has made and any refusals that he has received.

[17] He shall also amend the Statement of Claim to name “The Attorney General of Canada” as a defendant instead of the Government of Canada.

[18] The amendments shall be completed within 30 days.

[19] I am also encouraging the plaintiff to seek legal assistance with this claim. I am advising him to contact the Law Society of Ontario to inquire as to whether they have any resources which provide a plaintiff with the names of lawyers who will take cases pro bono or if they have any other organizations that he may be referred to.

[20] The parties shall reappear before me on December 11 at 9:00 am, 2023 for a further case conference. The parties shall send me a copy of the Amended Claim.

Papageorgiou J. Released: October 30, 2023