CLICK HERE, for Gov’t of Canada website on assisted dying. CLICK HERE, for 2015 Supreme Court ruling. CLICK HERE, for 1993 ruling prohibiting assisted suicide. CLICK HERE, for the CDN Charter of Rights & Freedoms. CLICK HERE, for the Canadian Criminal Code. CLICK HERE, for Bill C-14, assisted suicide.
2. Law Against Assisted Suicide
Counselling or aiding suicide
241 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, whether suicide ensues or not,
(a) counsels a person to die by suicide or abets a person in dying by suicide; or (b) aids a person to die by suicide.
Now there is more to be considered. See section 6.
3. Canadian Charter, Section 7
Guarantee of Rights and Freedoms
Rights and freedoms in Canada
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
The 2015 decision ruled that the blanket ban violated the Section 7 Charter rights, and that there was no “saving” of it under Section 1.
4. SCC Orders Parliament To Fix Law
 The appeal is allowed. We would issue the following declaration, which is suspended for 12 months: Section 241 (b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person 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.
The Supreme Court of Canada ruled that the prohibition against assisted suicide violated Section 7 of the Charter, which addresses security of the person.
The ruling is very long, and addressed the issue from a number of legal questions. It also addressed whether the Lower Courts should be bound by a 1993 ruling on much the same issues. It’s too lengthy to go through in an article, but is worth a read.
5. Bill C-14, Assisted Dying
This enactment amends the Criminal Code to, among other things,
(a) create exemptions from the offences of culpable homicide, of aiding suicide and of administering a noxious thing, in order to permit medical practitioners and nurse practitioners to provide medical assistance in dying and to permit pharmacists and other persons to assist in the process;
(b) specify the eligibility criteria and the safeguards that must be respected before medical assistance in dying may be provided to a person;
(c) require that medical practitioners and nurse practitioners who receive requests for, and pharmacists who dispense substances in connection with the provision of, medical assistance in dying provide information for the purpose of permitting the monitoring of medical assistance in dying, and authorize the Minister of Health to make regulations respecting that information; and
(d) create new offences for failing to comply with the safeguards, for forging or destroying documents related to medical assistance in dying, for failing to provide the required information and for contravening the regulations.
Following the Supreme Court ruling, the Federal Government was ordered to remedy the situation. Bill C-14 was introduced in 2016 to set out the guidelines for medically assisted death.
6. Medical Assistance Exemption
Eligibility for medical assistance in dying
241.2 (1) A person may receive medical assistance in dying only if they meet all of the following criteria:
(a) they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;
(b) they are at least 18 years of age and capable of making decisions with respect to their health;
(c) they have a grievous and irremediable medical condition;
(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.
Grievous and irremediable medical condition
(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:
(a) they have a serious and incurable illness, disease or disability;
(b) they are in an advanced state of irreversible decline in capability;
(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
To be fair, there are considerable safeguards written into the law to ensure that the person suffering is actually the one making the decision, and that it is voluntary and informed.
7. Where Does It Go From Here?
Currently, the law applies only to adults. But what happens when children decide that they want to make decisions over their own “health care”? Will minors be allowed to get it themselves? This is currently being considered.
The law allows for assisted suicide in the case of serious conditions which cause pain and is irreversible, and to get worse. How much will that get watered down over time? Perhaps this is just a foot-in-the-door technique to be able to end lives over more minor things.
What will happen to medical staff who refuse to participate in this? Will they become subject to sanctions for discrimination, or failing to fulfill a duty?
In fairness to Trudeau (it feels weird defending him), introducing this, or similar legislation, was forced by the 2015 Supreme Court ruling. Some bill had to be introduced at some point, so he doesn’t own this one.
Personally, this is conflicting. People should have control over their own lives, yes, but trending down a slope where lives are valued less and less is very troubling. How we treat and care for people reflects the society we live in, and this is the wrong direction to head in.
CLICK HERE, for Ontario Court of Appeals ruling, May 15, 2019. CLICK HERE, for the Ontario Divisional Court ruling, January 31, 2018. CLICK HERE, for R.v. Oakes (balancing test) CLICK HERE, for Carter v. Canada (struck down assisted suicide laws). CLICK HERE, for Ontario Human Rights Code. CLICK HERE, for the Canadian Charter. CLICK HERE, for some Charter cases. CLICK HERE, for Housen v. Nikolaisen, 2002 (standard for review)
Miscellaneous Articles CLICK HERE, for woman who tries to drown newborn gets only 1 year. CLICK HERE, for a Maclean’s article on “assault on women’s rights”. CLICK HERE, for Roe (as in Roe v Wade), becomes anti-abortion activist.
2. Brief Introduction
The case above is one of Ontario doctors refusing to provide certain “reproductive health services” (a.k.a. abortion), and “medical assistance in dying” MAiD (a.k.a. euthanasia). Not only did they refuse to provide these services, they refused to help with the referrals procedures to others who would.
The Appellants refused on religious grounds. They claimed that requiring them to participate in these “medical services” violated their consciences and religious convictions. To be fair, we are talking about killing unborn children, eldery, and terminal patients. The other extreme would be more disturbing.
Their regulatory body, the College of Physicians and Surgeons of Ontario, says if they won’t perform such “health care services”, then they must help the patients get referred to doctors who will.
The Ontario Divisional Court agreed that this was the case. And now the Ontario Court of Appeals has upheld that ruling. Will this go to the Supreme Court of Canada? We will see.
3. Court of Appeal Exerps
 The appeal raises the following issues:
(1) What is the applicable standard of review and is the Doré/Loyola framework or the Oakes framework applicable to this case?
(2) Do the effective referral requirements of the Policies infringe the appellants’ s. 2(a) freedom of conscience and religion?
(3) Do the effective referral requirements of the Policies infringe the appellants’ s. 15(1) equality rights?
(4) If there is an infringement of the appellants’ Charter rights and/or freedoms, is it justified under s. 1 of the Charter?
Standard Of Review
 The normal rules of appellate review of lower court decisions, articulated in Housen v. Nikolaisen, 2002 SCC 33 (CanLII),  2 S.C.R. 235, apply on this appeal. Questions of law are reviewed on a correctness standard, and questions of fact and mixed fact and law are reviewed on a standard of palpable and overriding error: Housen, at paras. 8, 10, 36-37. The Divisional Court’s selection and application of the correctness standard to the Policies is a question of law and is accordingly reviewed by this court on a correctness standard.
If it is a question of fact, the standard is “overriding palpable error”. In essence, Appeals Courts tend to “give deference” to the Trial Judge since he/she is in a much better position to actually judge the case.
In questions of law, the standard is the correctness of the law itself.
In questions of mixed law and fact are viewed more towards “overriding palpable error”.
 In Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 (CanLII),  2 S.C.R. 293, at para. 62, the Supreme Court adopted the definition of religious freedom expressed in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC),  1 S.C.R. 295, at p. 336:
[T]he right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.
 At para. 63, the court set out the requirements of the test:
[F]irst, that he or she sincerely believes in a practice or belief that has a nexus with religion; and second, that the impugned state conduct interferes, in a manner that is more than trivial or insubstantial, with his or her ability to act in accordance with that practice or belief.
This was the test applied by the Divisional Court, referring to Syndicat Northcrest v. Amselem, 2004 SCC 47 (CanLII),  2 S.C.R. 551, at para. 56. See also Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 (CanLII),  2 S.C.R. 567, at para. 32.
 The sincerity of belief and interference are conceded. But the College contends that the interference is trivial and insubstantial and does not contravene s. 2(a).
 I disagree. To explain my reasons, it is necessary to examine the appellants’ beliefs and their objections to performing or referring patients for the procedures at issue.
All parties agree the beliefs are sincere. The College says it is trivial, while the Panel disagrees.
Section 15 and Equality
 The Divisional Court referred to the two-part test for establishing a breach of s. 15(1) articulated in Taypotat, at paras. 19-20: (1) whether, on its face or in its impact, a law creates a distinction on the basis of an enumerated or analogous ground; and (2) whether the impugned law fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage.
 The focus of the inquiry is “whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group” such that it is a “discriminatory distinction”: Taypotat, at paras. 16, 18; and Quebec (Attorney General) v. A., 2013 SCC 5 (CanLII),  1 S.C.R. 61, at para. 331
 Applying this test, the Divisional Court dismissed the appellants’ claim that the Policies infringe their equality rights under s. 15(1) of the Charter. Without deciding whether the Policies create a distinction on the basis of religion, the Divisional Court held that the Policies do not have the effect of reinforcing, perpetuating or exacerbating a disadvantage or promoting prejudice against religious physicians. Nor do they restrict access to a fundamental social institution or impede full membership in Canadian society.
To put it mildly, the Courts have decided that not all “equality rights” are treated equally. In other words, it is okay to discriminate on the basis of “protected grounds” as long as it falls within certain guidelines.
Allowed Under Section 1?
 The onus at this stage is on the College to establish, on a balance of probabilities, that the infringement of the appellants’ freedom of religion is a reasonable limit, demonstrably justified in a free and democratic society: Multani, at para. 43.
 In Oakes, at pp. 135 and 138-39, Dickson C.J. articulated a framework for the s. 1 analysis, which can be summarized as follows:
(a) the Charter-infringing measure must be “prescribed by law”;
(b) the objective of the impugned measure must be of sufficient importance to warrant overriding a constitutionally protected right or freedom;
(c) the means chosen must be reasonable and demonstrably justified – this is a “form of proportionality test” which will vary in the circumstances, but requires a balancing of the interests of society with the interests of individuals and groups and has three components:
(i) the measure must be rationally connected to the objective – i.e., carefully designed to achieve the objective and not arbitrary, unfair or based on irrational considerations;
(ii) the means chosen should impair the Charter right or freedom as little as possible; and
(iii)there must be proportionality between the salutary and deleterious effects of the measure.
This is a fairly lengthy section, but this lays out the groundwork for determining whether Charter violations can otherwise be “saved”. Are there justifiable public interests in the breaches that are affirmed? Ultimately, the Court of Appeals said yes. These violations were justified on other grounds.
 The Fact Sheet identifies options that are clearly acceptable to many objecting physicians. Those who do not find them acceptable may be able to find other practice structures that will insulate them from participation in actions to which they object. If they cannot do so, they will have to seek out other ways in which to use their skills, training and commitment to patient care. I do not underestimate the individual sacrifices this may require. The Divisional Court correctly found, however, that the burden of these sacrifices did not outweigh the harm to vulnerable patients that would be caused by any reasonable alternative. That conclusion is not undermined by the fresh evidence before this court. Even taking the burden imposed on physicians at its most onerous, as framed by the appellants, the salutary effects of the Policies still outweigh the deleterious effects.
 As the Divisional Court observed, the appellants have no common law, proprietary or constitutional right to practice medicine. As members of a regulated and publicly-funded profession, they are subject to requirements that focus on the public interest, rather than their interests. In fact, the fiduciary nature of the physician-patient relationship requires physicians to act at all times in their patients’ best interests, and to avoid conflicts between their own interests and their patients’ interests:
4. Closing Thoughts
This is the heart of the conclusion:
(A) Doctors have other options
(B) Doctors can alter their practice
(C) Public interest comes first
(D) Medicine is a publicly regulated profession.
One thing needs to be pointed out though: just because something is LEGAL, doesn’t make it MORAL. Abortion and euthanasia are killing. Period.
Although both abortion and assisted suicide have no criminal penalties against them, there are still huge scientific and moral arguments against both. This will be a topic for a coming piece.
If a person believes that carrying out just “health care services” amounts to murder, that is okay. But wouldn’t referrals of such procedures make a doctor an accessory to murder? Although one degree removed, the moral objection would be the same.
Bottom line: provide the service, or refer to someone else who will. You’re here to serve the public.