Another chapter in the continuing saga of medical assistance in dying (“MAID”) was completed on January 31, 2018 when the Divisional Court of the Ontario Superior Court of Justice ruled on the constitutionality of the “Effective Referral Provisions” of the Human Rights Policy and MAID Policy of the College of Physicians and Surgeons of Ontario (“CPSO”). (In this blog post, I am focussed on the MAID Policy but the judgment refers to the Policies.) The Effective Referral Provisions require physicians who are unwilling to provide, amongst other matters, MAID to their patients, on moral or religious grounds to provide an effective referral to another health care provider. The Christian Medical and Dental Society of Canada and the Canadian Federation of Catholic Physicians’ Societies, and Canadian Physicians for Life, along with a number of individual “objecting” physicians had challenged the Effective Referral Policy on the basis that the Policy violated their freedom of religion and conscience protected by s. 2(a) of the Charter and their right to equality protected by s. 15. Justice Wilton-Siegel, (Justices Lococo and Matheson concurring) disagreed and dismissed the challenges: The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579.
BC’s Selkirk Mountains as seen from space: NASA
On November 3, 2017, the Supreme Court of Canada confirmed that, yet another part of a First Nation’s claimed traditional territory could be subject to permanent development because the government had conducted “reasonable consultation”. In Ktunaxa Nation v. British Columbia (Minister of Forests, Lands and Resources), 2017 SCC 54, the Court delivered a double blow to the Indigenous Nation. Not only did the Court hold that the Indigenous Nation’s freedom of religion was not infringed by the government’s decision to approve a year-round ski resort development on their claimed sacred grounds but the Court also found that the Minister had reasonably consulted the Indigenous Nation and that, therefore, the governmental approval was upheld. There are a number of perspectives to this case so this blog post will actually be considering:
1. Freedom of religion;
2. Reasonable consultation and accommodation; and
3. Supreme Court of Canada appointments.
Last week, the Québec National Assembly passed the Religious Neutrality Act, also known as Bill 62. Aside from the Indian Act which I
continue to believe is Canada’s most discriminatory legislation (it is pretty hard to argue that the Indian Act’s legislative purpose was anything other than to contain and control the Indian peoples of Canada – of course, this is a conversation for a different day), I can think of no other provincial or federal legislation that is as overtly discriminatory as Bill 62.
While the Act proclaims the secular nature of the organs of state of the Québec government, its central provisions deal with, of all things, face covering. And not just for the personnel of the Québec government. For anyone receiving services from the Québec government. So to be clear, the rule is that to provide or receive services, one’s face must be covered.
More than 14 months after the Supreme Court first held that the Criminal Code provisions forbidding physician-assisted death were unconstitutional in Carter v. Canada (Attorney General), 2015 SCC 5, and almost three months to the day from the date that the Supreme Court gave a four month extension to its suspension of the declaration of unconstitutionality (see Carter v. Canada (Attorney General), 2016 SCC 4), the Liberal government has introduced its legislative response with a bill, Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying).
On February 16, 2016, the Quebec Superior Court upheld the Succession to the Throne Act, 2013, an Act of the federal Parliament that gave Canada’s assent to an Act before the Parliament of the United Kingdom that changed the rules of succession for the British monarchy such that the system of male preference primogeniture under which a younger son could displace an elder daughter in the line of succession was to be ended and also such that the rule that rendered anyone who married a Catholic became ineligible to succeed to the Crown was similarly removed. In Motard v. Procureur general du Canada et al., 2016 QCCS 588, Justice Claude Bouchard examined the question as to whether the amendments to the royal succession, and Canada’s assent to them, were changes to Canada’s constitution and, if so, whether Part V of the Constitution Act, 1982 was therefore engaged.
For those of you who follow this issue, the current score is 2 to 1 for Trinity Western University as against the Law Societies. TWU has won two of the three trial court decisions – namely, those in British Columbia and Nova Scotia. It lost its inaugural round in Ontario. All three decisions are being appealed. As we all know, this one is going all the way to the Big House.
Where do things stand right now in the three provinces?
Today Chief Justice Hinkson quashed the decision of the Benchers of the Law Society of British Columbia to submit the question as to whether to accredit Trinity Western University’s proposed law school or not to a referendum of the members after previously having decided to accredit the proposed law school. He found that the Benchers’ later decision was improper, was an improper fettering of the Benchers’ discretion and did not involve a proper balancing of the Charter interests as had been done by the Benchers in their earlier decision. He restored their earlier decision to accredit the proposed law school. His ruling can be found at Trinity Western University v. Law Society of British Columbia, 2015 BCSC 2326. I will not go through the legal analysis in this post, at least not today. I will say, however, that this is obviously yet just one more step in the multi-province, multi-action process that will eventually culminate in the Supreme Court of Canada having to review its earlier decision in Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31.
On September 15, 2015, the Federal Court of Appeal issued a short ruling from the bench in the appeal of Zunera Ishaq’s case respecting the Department of Citizenship and Immigration’s policy that requires women who wear a niqab to unveil in order to take the oath of citizenship. In Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 194, Madam Justice Mary Gleason rendered a short six paragraph oral set of reasons, issued in this manner so that Ms. Ishaq might still be able to take the oath of citizenship and vote in the upcoming election.
The Supreme Court of Canada recently pronounced on the appropriateness of a municipal council insisting on a prayer before holding its meetings. In Mouvement Laique Quebecois v. Saguenuay (City), 2015 SCC 16, Justice Gascon for the majority (Abella J dissenting on the question of the variable test for judicial review of administrative tribunals) held that City of Saguenay’s bylaw which provided for the use of such a prayer, even if it did not derive from any particular denomination, nonetheless offended the freedom of religion of atheists and agnostics (the freedom not to believe) and was therefore inoperative.
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[Photo of religious educators in pre-Quiet Revolution Quebec]
Yet again, the Supreme Court of Canada wrestled with the thorny issue caused by the intersection of religious freedom and the secular state. In Loyola High School v. Quebec (Attorney General), 2015 SCC 12, the Court conceded some measure of victory to both sides of the equation. In a 4:3 majority decision, Justice Abella (LeBel, Cromwell and Karakatsanis JJ concurring) held that a private denominational school could be required to teach a state prescribed curriculum on world religions, religious cultures and their respective religious ethics from a neutral and secular perspective with the exception of the school’s own denomination. For that particular religion (here, Catholicism), the school was entitled to an exemption to teach its students from a Catholic perspective, an exemption that the provincial Minister had refused to provide.