[1]Law Commission of Ontario, A Framework for the Law as It Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice (Toronto: April 2012), online: http://www.lco-cdo.org/en/older-adults-final-report [LCO, Framework for the Law as It Affects Older Adults]; Law Commission of Ontario, A Framework for the Law as It Affects Persons with Disabilities: Advancing Substantive Equality for Persons with Disabilities through Law, Policy and Practice (Toronto: September 2012), online: http://www.lco-cdo.org/en/disabilities-final-report [LCO, Framework for the Law as It Affects Persons with Disabilities].
[2] For a brief overview of this law reform process, see Law Commission of Ontario, Legal Capacity, Decision-making and Guardianship: Discussion Paper (Toronto: May 2014), Part I, Ch 1.B, online: http://lco-cdo.org/en/capacity-guardianship-discussion-paper [LCO, Legal Capacity and Decision-making Discussion Paper].
[3]LCO, Legal Capacity and Decision-making Discussion Paper, note 2.
[4]Law Commission of Ontario, Legal Capacity, Decision-making and Guardianship: Summary of Issues for Consultation (Toronto: June 2014), online: http://www.lco-cdo.org/en/capacity-guardianship-discussion-paper-summary-consultation-issues [LCO, Summary of Issues].
[5] Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A [HCCA].
[6] Substitute Decisions Act, 1992, S.O. 1992, c. 30 [SDA].
[7] Mental Health Act, R.S.O. 1990, c. M.7 [MHA].
[8]The British Columbia Law Institute has carried out substantial work on common law tests of capacity: British Columbia Law Institute, Report on Common-Law Tests of Capacity (Vancouver: September 2013), online: http://www.bcli.org/wordpress/wp-content/uploads/2013/09/2013-09-24_BCLI_Report_on_Common-Law_Tests_of_Capacity_FINAL.pdf.
[9] Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Schedule A [PHIPA].
[10]The Uniform Law Conference of Canada, together with the Uniform Law Commission, has undertaken a project to develop a uniform act on interjurisdictional recognition of substitute decision-making documents. See http://www.ulcc.ca/images/stories/2014_pdf_en/2014ulcc0013.pdf, item #13.
[11]LCO, Framework for the Law as It Affects Older Adults, note 1; LCO, Framework for the Law as It Affects Persons with Disabilities, note 1.
[12]Advisory Committee on Substitute Decision Making for Mentally Incapable Persons, Final Report of the Advisory Committee on Substitute Decision Making for Mentally Incapable Persons (Toronto: 1987) [Fram Report].
[13] Law Commission of Ontario, Final Report, Capacity and Legal Representation for the Federal RDSP (Toronto: June 2014) [LCO, RDSP Final Report], online: http://www.lco-cdo.org/en/rdsp.
[14] David N. Weisstub, Enquiry on Mental Competency: Final Report (Toronto: Publications Ontario, 1990), 55 [Weisstub Report].
[15]Fram Report, note 12, vii.
[16]Fram Report, note 12, 39-47.
[17]Review of Advocacy for Vulnerable Adults, Terms of Reference, January 1987 in Sean O’Sullivan, You’ve Got a Friend: A Review of Advocacy in Ontario (Toronto: Ontario Ministry of the Attorney General, 1987), 121-22.
[18] SDA, note 6, s. 2; HCCA, note 5, s. 4(2).
[19] HCCA, note 5, ss. 10, 40.
[20] SDA, note 6, ss. 32(1), 38.
[21] SDA, note 6, ss. 66(2)-(3).
[22] SDA, note 6, ss. 32(2)-(5).
[23] The LCO has commenced a project on Improving the Last Stages of Life, which will address some of these issues. Information on this project may be found online at http://www.lco-cdo.org/en/last-stages-of-life.
[24] Treatment without consent is permitted in emergencies under s. 25 of the HCCA, while admission to a long-term care facility without consent is permitted in a crisis situation under s. 47 of the HCCA.
[25] LCO, Framework for the Law as It Affects Older Adults, note 1; LCO, Framework for the Law as It Affects Persons with Disabilities, note 1.
[26] Convention on the Rights of Persons with Disabilities, 13 December 2006, 2515 UNTS 3, GA Res 61/106 (entered into force 3 May 2008, ratified by Canada 11 March 2010) [CRPD].
[27] Kerri Joffe & Edgar-Andre Montigny (ARCH Disability Law Centre), Decisions, Decisions: Promoting and Protecting the Rights of Persons with Disabilities Who are Subject to Guardianship (Toronto: Law Commission of Ontario, January 2014) [Joffe & Montigny], 6, online: http://lco-cdo.org/en/capacity-guardianship-commissioned-paper-arch.
[28] City of Toronto, Toronto Facts: Diversity, online: http://www1.toronto.ca/wps/portal/contentonly?vgnextoid=dbe867b42d853410VgnVCM10000071d60f89RCRD&vgnextchannel=57a12cc817453410VgnVCM10000071d60f89RCRD.
[29] LCO, Framework for the Law as It Affects Persons with Disabilities, note 1, Ch. II.D; LCO, Framework for the Law as It Affects Older Adults, note 1, Ch. III.A.
[30] See, for example, Michael Bach & Lana Kerzner, A New Paradigm for Protecting Autonomy and the Right to Legal Capacity (Toronto: Law Commission of Ontario, October 2010) [Bach & Kerzner, A New Paradigm], 141 and following, online: http://www.lco-cdo.org/en/disabilities-call-for-papers-bach-kerzner; and Coalition on Alternatives to Guardianship, The Right to Legal Capacity and Supported Decision-making for All, A Brief to the Law Commission of Ontario (Toronto: October 2014) [Coalition on Alternatives to Guardianship, Brief] 30 and following, online: http://communitylivingontario.ca/sites/default/files/Coalition%20Brief%20to%20LCO%20-%20Oct%202014%20-%20final.pdf.
[31] Margaret Isabel Hall, “Mental Capacity in the (Civil) Law: Capacity, Autonomy, and Vulnerability” (2012) 58:1 McGill L. J. 61, 65.
[32] SDA, note 6, s. 78.
[33] MHA, note 7, s.59.
[34] SDA, note 6, ss. 22(3) and 55(2).
[35] SDA, note 6, ss. 32(3), 66(3), (4), and (5); HCCA, note 5, s.21.
[36] A “Ulysses agreement” allows a person creating a power of attorney for personal care to waive rights to challenge a finding of incapacity or to permit the use of force to facilitate treatment. Not surprisingly, the requirements for the creation of a “Ulysses agreement” are stringent: SDA, note 6, s. 50; HCCA, note 5, s. 32(2).
[37] LCO, Framework for the Law as It Affects Older Adults, note 1, 87-88.
[38] A brief discussion of adult protection laws may be found at LCO, Framework for the Law as It Affects Older Adults, note 1, Ch. III.B.5.
[39] Among the aspects of diversity which should be considered in applying the Frameworks, should be included gender identity, reflecting the protections of the Ontario Human Rights Code and the growing understanding of the experiences of individuals related to gender identity and of the discrimination experienced by individuals on this basis.
[40] HCCA, note 5, s. 1.
[41] Adult Protection and Decision-making Act, S.Y. 2003, c. 21, Sched. A, [Adult Protection and Decision-making Act], s. 4.
[42] Alberta Guardianship and Trusteeship Act, S.A 2008, c. A-4.2, [AGTA], s. 2; The Adult Guardianship and Co-Decision-making Act, S.S. 2000, c. A.5.3, [Adult Guardianship and Co-Decision-making Act], s. 3; Adult Protection and Decision-making Act, note 41, s. 2; Mental Capacity Act 2005, (UK), c. 9, [Mental Capacity Act], s. 1; Assisted Decision-Making (Capacity) Bill 2013, Bill No. 83 of 2013, Minister for Justice and Equality (July 13, 2012), [Irish Bill 2013], s. 8. The Irish Bill 2013 was reviewed by the Select Committee on Justice on June 17, 2015.
[43] Victorian Law Reform Commission, Guardianship: Final Report (Melbourne, Australia: 2012) [VLRC, Final Report], 78, online: http://www.lawreform.vic.gov.au/projects/guardianship-final-report.
[44] Long-Term Care Homes Act 2007, S.O. 2007, c.8, [LTCHA], s. 1.
[45] LCO, Framework for the Law as It Affects Older Adults, note 1, 107.
[46] Policy Horizons Canada, “The Case for Evidence Based Policy”, 2013, online: http://www.horizons.gc.ca/eng/content/case-evidence-based-policy.
[47]Michael Howlett & Jonathan Craft, “Policy Advisory Systems and Evidence-Based Policy: the Location and Content of Evidentiary Policy Advice” in