Euthanasia #3: Bill C-7 To Expand Scope Of Assisted Suicide Beyond “Reasonably Foreseeable Death”

Bill C-7, the expanded version of the assisted suicide bill (or “euthanasia 2.0), is currently being discussed in the Canadian Parliament. It broadens the scope laid out in Bill C-14, from the previous Parliament. A Quebec Court ruled that Bill C-14’s requirement that a death be “reaso

1. Assisted Suicide (MAiD), Euthanasia

CLICK HERE, for #1: Court says referral or service must be provided.
CLICK HERE, for #2: Bill C-14, Medical Assistance in Dying (euthanasia).

2. Important Links

Bill C-14 Introduced In Parliament (2016)
Bill C-14 Committee Hearings

Truchon V AG Of Canada, 2019 QCCS 3792 (CanLII)
Truchon V. AG, Quebec Superior Court Ruling
Bill C-7 Introduced Into Parliament (Feb 2020)
Bill C-7 Re-Introduced Into Parliament (Oct 2020)
Bill C-7 Committee Hearings

C-7 Canadian Bar Association
C-7 Canadian Conference Of Catholic Bishops
C-7 Coelho Ramona
C-7 Commission On End Of Life Care
C-7 DawsTanja
C-7 Jointly1
C-7 Living With Dignity
C-7 Physicians Alliance Against Euthanasia
C-7 Protection Of Conscience Project
C-7 Wickenhesier Alizee

Bill C-7 Evidence November 3
Bill C-7 Evidence November 5

3. Quebec Court Says Changes Needed In MAiD

MEDICAL AID IN DYING
26. Only a patient who meets all of the following criteria may obtain medical aid in dying:
(1) be an insured person within the meaning of the Health Insurance Act (chapter A-29);
(2) be of full age and capable of giving consent to care;
(3) be at the end of life;
(4) suffer from a serious and incurable illness;
(5) be in an advanced state of irreversible decline in capability; and;
(6) experience constant and unbearable physical or psychological suffering which cannot be relieved in a manner the patient deems tolerable.
.
The patient must request medical aid in dying themselves, in a free and informed manner, by means of the form prescribed by the Minister. The form must be dated and signed by the patient.
.
The form must be signed in the presence of and countersigned by a health or social services professional; if the professional is not the attending physician, the signed form is to be given by the professional to the attending physician.

28. A patient may, at any time and by any means, withdraw their request for
medical aid in dying.
.
A patient may also, at any time and by any means, request that the
administration of medical aid in dying be put off.

31. A physician practising in a centre operated by an institution who refuses are quest for medical aid in dying for a reason not based on section 29 must, as soon as possible, notify the executive director of the institution or any other person designated by the executive director and forward the request form given to the physician, if that is the case, to the executive director or designated person. The executive director of the institution or designated person must then take the necessary steps to find, as soon as possible, another physician willing to deal with the request in accordance with section 29.
.
If the physician who receives the request practises in a private health facility and does not provide medical aid in dying, the physician must, as soon as possible, notify the executive director of the local authority referred to in section 99.4 of the Act respecting health services and social services (chapter S-4.2) that serves the territory in which the patient making the request resides, or notify the person designated by the executive director. The physician forwards the request form received, if that is the case, to the executive director or designated person and the steps mentioned in the first paragraph must be taken.
.
If no local authority serves the territory in which the patient resides, the notice referred to in the second paragraph is forwarded to the executive director of the institution operating a local community service centre in the territory or the person designated by the executive director.

In this case, the Applicant, Jean Truchon, had suffered from spastic cerebral palsy with triparesis since birth. In March 2012, he was diagnosed with severe spinal stenosis (narrowing of the spinal canal) as well as myelomalacia (spinal cord necrosis). This is a degenerative condition for which no surgical or pharmacological treatment exists that caused the gradual paralysis of his only working limb. As a result, in 2012, Mr. Truchon permanently lost the use of his left arm and became fully paralyzed, with no hope of improvement. This new condition was accompanied by significant physical pain in the arms and neck, with intense burning sensations and painful spasms.

While clearly not about to die soon, he seems fully aware of his condition, which has no reasonable prospect of improving. So can he request medically assisted suicide on this basis?

The Quebec Court said there is no reason to deny it.

[375] First, the Court is astounded by the fact that the experts for the Attorney General of Canada had not even a basic knowledge of the practice of medical assistance in dying in Canada, which has nonetheless been legal throughout the country since 2016. None of them has participated in the request process for medical assistance in dying, either by assessing a patient or by providing such medical assistance. None of them has done any research on the subject or even tried to consult the data available in Canada.

[376] Therefore, when they all state that there is no difference between suicide and medical assistance in dying, they are considering and presenting only one side of the story, one part of the equation. They compare the two issues without ever having analyzed, learned, or addressed the specifics of medical assistance in dying, its parameters, its eligibility criteria, or how it is practised in Canada.

As an aside, the Government presented “experts” who had no experience of knowledge whatsoever in medical assistance in dying. Either they couldn’t find better experts, or didn’t even try.

4. Bill C-7 Re-Introduced In Parliament

A point of clarification: Bill C-7 was actually introduced in February 2020, and only got as far as first reading. It died when Parliament was prorogued. It has been re-introduced (again, as Bill C-7), in the latest session.

SUMMARY
This enactment amends the Criminal Code to, among other things,
(a) repeal the provision that requires a person’s natural death be reasonably foreseeable in order for them to be eligible for medical assistance in dying;
(b) specify that persons whose sole underlying medical condition is a mental illness are not eligible for medical assistance in dying;
(c) create two sets of safeguards that must be respected before medical assistance in dying may be provided to a person, the application of which depends on whether the person’s natural death is reasonably foreseeable;
(d) permit medical assistance in dying to be provided to a person who has been found eligible to receive it, whose natural death is reasonably foreseeable and who has lost the capacity to consent before medical assistance in dying is provided, on the basis of a prior agreement they entered into with the medical practitioner or nurse practitioner; and
(e) permit medical assistance in dying to be provided to a person who has lost the capacity to consent to it as a result of the self-administration of a substance that was provided to them under the provisions governing medical assistance in dying in order to cause their own death.

Preamble
Whereas the Government of Canada has committed to responding to the Superior Court of Québec decision in Truchon v. Attorney General of Canada;
.
Whereas Parliament considers that it is appropriate to no longer limit eligibility for medical assistance in dying to persons whose natural death is reasonably foreseeable and to provide additional safeguards for those persons whose natural death is not reasonably foreseeable;
.
Whereas under the Canadian Charter of Rights and Freedoms every individual has the right to life, liberty and security of the person without being deprived of them except in accordance with the principles of fundamental justice and has the right to the equal protection and equal benefit of the law without discrimination;
.
Whereas Canada is a State Party to the United Nations Convention on the Rights of Persons with Disabilities and recognizes its obligations under it, including in respect of the right to life;
.
Whereas Parliament affirms the inherent and equal value of every person’s life and the importance of taking a human rights-based approach to disability inclusion;
.
Whereas Parliament recognizes the need to balance several interests and societal values, including the autonomy of persons who are eligible to receive medical assistance in dying, the protection of vulnerable persons from being induced to end their lives and the important public health issue that suicide represents;
.
Whereas it is desirable to have a consistent approach to medical assistance in dying across Canada, while recognizing the provinces’ jurisdiction over various matters related to medical assistance in dying, including the delivery of health care services and the regulation of health care professionals, as well as insurance contracts and coroners and medical examiners;
.
Whereas the Government of Canada is committed to having a federal monitoring regime that provides a reliable national dataset and that promotes accountability under the law governing medical assistance in dying and improve the transparency of its implementation;
.
Whereas, while recognizing the inherent risks and complexity of permitting medical assistance in dying for persons who are unable to provide consent at the time of the procedure, Parliament considers it appropriate to permit dying persons who have been found eligible to receive medical assistance in dying and are awaiting its provision to obtain medical assistance in dying even if they lose the capacity to provide final consent, except if they demonstrate signs of resistance to or refusal of the procedure;
.
Whereas further consultation and deliberation are required to determine whether it is appropriate and, if so, how to provide medical assistance in dying to persons whose sole underlying medical condition is a mental illness in light of the inherent risks and complexity of the provision of medical assistance in dying in those circumstances;
.
And whereas the law provides that a committee of Parliament will begin a review of the legislative provisions relating to medical assistance in dying and the state of palliative care in Canada in June 2020, which review may include issues of advance requests and requests where mental illness is the sole underlying medical condition;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

One of the main takeaways in Bill C-7 is that is removes a requirement from Bill C-14 that a person receiving medical assistance in dying have a death that is “reasonably foreseeable”. Now, a person can get a doctor or nurse to help with euthanasia for a wide array of reasons.

A worthwhile note: it includes language which prevents assisted suicide if the only reason for doing so is a mental illness.

5. Clips From Bill C-7 Parliamentary Hearings

The hearings, of course, last much longer, but those are a few clips of it. An interesting claim (from Roger Foley), about the father of the Judge in the Truchon ruling gave evidence in the case. If true, a huge conflict of interest.

It’s rather strange to see Iqra Khalid, who presented M-103 (the Islamic blasphemy Motion), heading up the hearings on medically assisted suicide. Curious to know what her views are.

6. Roger Foley, Assisted Life Website

My name is Roger Foley. I am the patient who has been in Victoria Hospital for over 4-years being pressured into assisted dying by the hospital and Government while they prevent my access to care options I need to live 1, 2. I have important public interest updates.

The Hospital is currently billing me $1800 dollars per day and continuing to coerce me to Assisted Dying during the Covid-19 pandemic when they threatened me with that and offered me Assisted Dying. Instead of protecting the lives of the elderly, the disabled and the vulnerable, the Hospital and Government are taking advantage, by further exploiting and abusing persons who are vulnerable before and during Covid-19 and not protecting their lives across the Country. So many persons are dying unnecessary deaths, when robust self-directed home care would make all Canadians safer in their own homes.

The Government cannot be trusted and they admitted rather than preparing for the Covid-19 pandemic, they were selling their exploitation and abuse of vulnerable Canadians to Assisted Dying rather than calling China to learn about the threat, ordering ventilators, protecting those in Long-Term Care facilities and Group Homes, and ordering Personal Protecting Equipment for Health Care workers to make sure frontline Health Care workers were safe. They also during the Pandemic in March, when thousands of people were dying, released their bias propaganda assisted dying expansion survey to continue to abuse, exploit and end the lives of vulnerable disabled and elderly Canadians. I am continuing to be attacked through my care, being denied basic necessities of life, and being denied proper and dignified health care. I am very scared, and the Government and the Health Care systems want to end my life rather than help me to live with dignity and compassion.

Assisted Life is documenting and chronicling the problems and conflicts of interests in proceedings. This is too long to cover in a single article, but it’s worth a good read.

7. Protection Of Conscience Project

An Act to amend the Criminal Code (medical assistance in dying)
.
I.1 The Protection of Conscience Project does not take a position on the acceptability of euthanasia or physician assisted suicide. The Project supports legislation that ensures that health care workers who object to providing or participating in homicide and suicide for reasons of conscience or religion are not compelled to do so or punished or disadvantaged for refusal.

One of the valid topics that needs to be discussed is the conscience rights of health care professionals who believe that participating in assisted suicide (or legalized murder) is wrong, and goes against their oath.

8. Physicians Alliance Against Euthanasia

To the Committee,
The danger of universal euthanasia access is similar to the passive, everpresent danger of drowning. A few people will die voluntarily by jumping in the water. But others will simply stumble. And yet others may be pushed.
.
Similarly, while some people will truly die by choice, others may “choose” euthanasia on a whim born of passing despair. But worse still: all people eligible for euthanasia become automatically vulnerable to pressure from others who cannot bear to see them suffer, are exhausted by their care, or will in some way benefit from their death, be they health professionals, caregivers or heirs.

Clearly, the most egregious harm of Bill C-7 lies in the extension of euthanasia to those who are not dying. The Carter decision specified that any legalization of euthanasia must include effective safeguards, of which the reasonably foreseeable death criterion was one.

In addition, Bill C-7 only requires that patients be informed of real alternatives to death in order to relieve suffering. That is clearly insufficient, given the scarcity of medical, psychological, and social resources for the many groups of people who might contemplate death as a solution to their troubles. It is essential that such alternatives be actually available to all patients considering euthanasia.

“Bill C-7 does not just expand MAiD; it fundamentally redefines it. No longer limited to hastening death, Bill C-7 embraces MAiD as a means of terminating an otherwise viable life – but only the life of someone with an illness or disability (italics added).
.
Bill C-7 (therefore) undermines our constitutional commitment to the equal and inherent value of all lives”

Other issues mysteriously bundled in Bill C-7
.
Whereas the end-of-life provision is of greatest importance, certain other elements of Bill C-7 have nothing to do with the requirements of Truchon/Gladu and their effects go far beyond compliance with that judgment. Two of these involve weakening euthanasia safeguards in cases where natural death is reasonably foreseeable: It is proposed that the existing ten-day waiting period be eliminated for all patients; and that the number of witnesses to the request be lowered from two to only one (who may also be a health care professional involved in the patient’s care).

The Physicians Alliance Against Euthanasia raises a number of valid points about Bill C-14, including:
(a) people may choose death in a moment of despair
(b) death may be promoted be interested parties
(c) Bill C-7 redefines MAiD, not just expands it
(d) eliminating the 10 day waiting period
(e) reducing the 2 witness threshold to 1

9. Was Bill C-14 Just A Gateway?

This is a fair question to ask: was Bill C-14 just a stepping stone to more widespread euthanasia. By allowing medically assisted suicide for terminally ill people, Parliament unwittingly, (or perhaps wittingly), set a precedent to broader implementation. How do we determine that the right person — the one whose life would end — is actually making the decision, and in a fully informed way?

While the prospect of relatives hastening death in anticipation of an inheritance seems like a movie script, it is a realistic possibility. Greed makes some people do horrible things.

Standards also have to be set to ensure the person has fully thought out the consequences, and is not just suffering from a bad day (or series or days).

It’s also been mentioned by Roger Foley, and AssistedLife.ca, that these court decisions have been influenced by conflicts of interest. The research done is quite impressive. That will be addressed separately.

Of course, there are a lot of legitimate concerns and questions (such as being used to outright murder) that will likely never be fully addressed.

CV #39: Forced Or Coerced Vaccination Violates Nuremberg Code

If the Nuremberg Code provides very reasonable guidelines on performing medical experiments, then what possible stretch of logic would prohibit people from refusing forced vaccines?

1. Other Articles On CV “Planned-emic”

For much more on the coronavirus “pandemic”, check out this series. Know the real story about the lies, inflated death tolls, rampant lobbying, financial conflicts of interest, and other deception that the mainstream media will not report on.

2. Text Of Nuremberg Code

  1. The voluntary consent of the human subject is absolutely essential.
  2. The experiment should be such as to yield fruitful results for the good of society, unprocurable by other methods or means of study, and not random and unnecessary in nature.
  3. The experiment should be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease or other problem under study that the anticipated results will justify the performance of the experiment.
  4. The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury.
  5. No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments where the experimental physicians also serve as subjects.
  6. The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment.
  7. Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death.
  8. The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment.
  9. During the course of the experiment the human subject should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.
  10. During the course of the experiment the scientist in charge must be prepared to terminate the experiment at any stage, if he has probable cause to believe, in the exercise of the good faith, superior skill and careful judgment required of him that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject.

3. Does Forcing Vaccines Violate Code?


It stands to reason that if forcing people to participate in medical experiments is unethical, then forcing vaccines on people should be as well. Considering the lack of testing and safety mechanisms, it would be hard to argue that this is not still experimental.

Beyond actual force, making it unreasonably difficult to live one’s life without being vaccinated should also imply a lack of informed consent. Would a Government put a “boot on the neck” under the guise of public safety? Well, they are already.

What will happen should this be put in a court challenge? Guess only time will tell.

Canada’s Bill C-14, Assisted Suicide

1. Important Links

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.

C-14 British Columbia Humanist Association
C-14 Christian Legal Fellowship
C-14 Communication Disabilities Access Canada
C-14 Dying with Dignity Canada Nova Scotia Chapter
C-14 Euthanasia Prevention Coalition
C-14 Justice For Children And Youth
C-14 Life Canada
C-14 Protection Of Conscience Project
C-14 Quebec Association for the Right to Die with Dignity
C-14 Saskatchewan Pro-Life Association Inc
C-14 St. Catharines Right To Life Association</a

2. Law Against Assisted Suicide

Suicide
Marginal note:
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
Marginal note:
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

XIII. Conclusion
[147] 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

SUMMARY
.
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.

Infanticide #7: Ontario COA Rules Doctors Must Provide Abortions/Euthanasia, or Provide Referal

(article from Christian Legal Fellowship)

(Lifesite news also covered this)

(Ontario Divisional Court ruling)

(Divisional Court ruling appeal to Ontario Court of Appeals)

1. Other Articles on Abortion/Infanticide

CLICK HERE, for #1: universities fighting against pro-life groups.
CLICK HERE, for #2: citing abortion stats now considered violence.
CLICK HERE, for #3: up to birth abortion now legal in VA/NY.
CLICK HERE, for #4: letting babies who survive abortion die.
CLICK HERE, for #5: UN supports abortion rights, even for kids.
CLICK HERE, for #6: fallout and some pushback on abortion.

2. Important Links

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.

3. 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.

4. Court of Appeal Exerps

E. Issues
[57] 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

[59] The normal rules of appellate review of lower court decisions, articulated in Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 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”.

Religious Freedom

[62] In Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 (CanLII), [2018] 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), [1985] 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.

[63] 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), [2004] 2 S.C.R. 551, at para. 56. See also Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 (CanLII), [2009] 2 S.C.R. 567, at para. 32.

[64] 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).

[65] 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

[87] 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.

[88] 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), [2013] 1 S.C.R. 61, at para. 331

[89] 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?

[97] 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.
[98] 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.

[186] 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.

[187] 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:

5. 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.