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.
A recent decision of Chief Justice Hinkson of the British Columbia Supreme Court in Lamb v. Canada (Attorney General), 2017 BCSC 1802 has underscored the fact that Canada is not done with the medical assistance in dying portfolio. As we know, in 2016, the Liberal government pushed through Bill C-14 over the objections of many who asserted that the Bill did not comply with the Supreme Court of Canada’s ruling in Carter v. Canada (Attorney General), 2015 SCC 5. Indeed, in a previous post, I predicted that if the legislation passed “as is”, we would see “yet another challenge (and more people suffering unnecessarily) in the not too distant future”. Unfortunately, this prediction has come to pass.
For about nine years here on Canada’s West Coast, a constitutional battle has been fought over the future of public health care. The opening shots were fired in 2008 by some individual patients against a private surgery clinic, Cambie Surgeries Corporation (“Cambie”), claiming that Cambie was illegally extra-billing and that the Medical Services Commission (the “MSC”) was not properly enforcing the law. Cambie then responded by launching its own action in early 2009, challenging the constitutionality of provisions of the provincial Medicare Protection Act claiming that they caused undue delay in access to health care resulting in a violation of the patients’ rights to life, liberty and security of the person as guaranteed by s. 7 of the Charter (amongst other challenges). Since 2009, there have been over thirty reported decisions of the Supreme Court of British Columbia dealing with procedural issues. Over twenty of those reported decisions have been issued since the commencement of trial (I am sure that there are many more unreported decisions).
As 2016 fades into the distance, I thought that it might be useful to look back and see what were some of the biggest constitutional developments in the Old Year. There were many but I think that a few stand out for me. A number do not involve constitutional judicial determinations but they are major Canadian constitutional developments nonetheless.
In a recent decision of the Supreme Court of British Columbia, Ewert v. Canada (Attorney General), 2016 BCSC 962, Mr. Justice Blok certified as a class action certain aspects of a lawsuit brought by an inmate for, amongst other things, damages for violations of Charter rights. The inmate in question, Jeffery Ewert, claimed that, during a lockdown at the Kent Correctional Institution that occurred between January 7 and 18, 2010, his rights and the rights of other inmates under ss. 7, 8 and 12 of the Charter were violated and that they were accordingly entitled to damages.
The extended deadline set by the Supreme Court of Canada in Carter v. Canada (Attorney General), 2016 SCC 4 expired last night, June 6, 2016, at midnight. The constitutional exemption created by the Court in granting the extension to its original deadline of February 6, 2016, would have logically expired as well. So what is the state of the law today in Canada insofar as it relates to medical assistance in death?
On June 3, 2016, the Supreme Court of Canada yet again upheld the constitutional principle in support of professional secrecy between legal advisors and their clients. Justices Wagner and Gascon, rendering reasons for the Court in Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, underscored the importance of solicitor-client privilege, not only in the judicial system, but also in the legal system. Accordingly, in Chambres des notaires, as well as in Canada (National Revenue) v. Thompson, 2016 SCC 21, released contemporaneously, the Court held that the right to professional secrecy trumped the need of the government to be able to obtain accounting records of legal advisors in so far as they related to clients.
In two separate decisions, the courts have made it clear that nothing in Carter v. Attorney General (Canada), 2015 SCC 5 requires that the person seeking medical assistance in dying be suffering from a terminal illness or condition. And yet the government persists in pursuing Bill C-14 with its requirement of “reasonable foreseeability” of death.
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).
By a 5 to 4 margin, in Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14 (referred to as the Long Gun Registry case in this post), the Supreme Court of Canada ruled on March 27, 2015 that the Quebec government had no right to insist that, before destroying all data in the now defunct federal long gun registry, the federal government hand over to it the data relating to Quebec resident long gun owners. Two and a half weeks later, by a 6 to 3 margin, in R. v. Nur, 2015 SCC 15, the Court held that the mandatory minimum sentence for possessing prohibited firearms was contrary to s. 12 of the Charter and was not justified under s. 1. What is of interest, besides the result in these two cases, is how the Court divided and the basis for its division.