Legal restrictions on certain explicit materials are justifiable and constitutional, particularly to the extent that such materials can be linked to harm.
Court: "A society that does not admit of and accommodate differences cannot be a free and democratic society"
The Christian Legal Fellowship and The Evangelical Fellowship of Canada intervene in support of freedom of religion in Ktunaxa v. British Columbia
This article was written by CLF Associate Legal Counsel, John Sikkema, J.D., and originally appeared in the September 2016 edition of the Christian Legal Journal.
Any state-imposed limit on a constitutional right or freedom must be “prescribed by law”, according to section 1 of the Charter. This requirement stems from the principle of the “rule of law”, a principle that long precedes the Charter and is called foundational in the Charter’s preamble.
In this article, I argue that the rule of law has been neglected in recent years much to the disadvantage of Trinity Western University (TWU) in its ongoing litigation with three provincial law societies and that this principle should be brought to bear on the ongoing litigation. While previous articles in this Journal have examined the s. 2(a) religious freedom, 2(b) association, and s. 15 equality rights engaged in the TWU litigation, this article draws attention to the “prescribed by law” requirement of s. 1 and why CLF has raised it as an intervener.
The law societies’ rejection of TWU
Before TWU opened its doors, three provincial law societies formally resolved to reject a TWU law degree as satisfying their requirements for admission to the bar. In fact, after TWU obtained approval of its program from the Federation of Law Societies (FLS), two law societies—the Law Society of British Columbia (LSBC) and the Nova Scotia Barristers Society (NSBS)—changed their rules regarding how they recognize academic credentials for admission to articling and practice, in an apparent effort to ensure they had some legal basis for rejecting TWU despite the FLS’ approval.
In Ontario, the Law Society of Upper Canada (LSUC) already had in place a requirement that applicants for admission have a degree from an “accredited law school”, meaning simply “a law school in Canada that is accredited by the Society” (ByLaw 4, Part 3, s. 7). Its rules and bylaws do not provide any guidance on deciding whether to accredit a school. The LSUC voted in April 2014 to reject the accreditation of TWU’s law school. It has since defended the decision as reasonable in light of its statutory mandate to protect the public interest.
The LSBC, which formerly accepted a law degree from any Canadian common law faculty as satisfying its academic requirements, when it learned that TWU had applied to the FLS, passed Rule 2-27(4.1) (now Rule 2-54(3)). This Rule says that a law degree satisfies the LSBC’s academic requirements if it is obtained from an “approved” common law faculty. Further, the Rule states that a law faculty is “approved” if it meets FLS standards, but with a major caveat: “unless the Benchers adopt a resolution declaring that it is not or has ceased to be an approved faculty of law.” There are no further criteria. Following the adoption of the Rule, the LSBC (eventually) resolved that TWU was not an approved law school.
The NSBS, which formerly required a law degree “from a faculty of common law at a Canadian university approved by the Federation of Law Societies of Canada”, passed a regulation in 2014 stating it would be satisfied with “a Bachelor of Laws degree or a Juris Doctor degree from a faculty of common law at a Canadian university approved by the Federation of Law Societies of Canada for granting of such degree, unless Council, acting in the public interest, determines that the university granting the degree unlawfully discriminates in its law student admissions or enrolment policies or requirements on grounds prohibited by either or both the Charter of Rights and Freedoms or the Nova Scotia Human Rights Act.” This regulation was passed after the NSBS had resolved that “[TWU’s] Community Covenant is discriminatory and therefore Council does not approve the proposed law school at Trinity Western unless TWU either: exempts law students from signing the Community Covenant; or amends the Community Covenant for law students in a way that ceases to discriminate.”
Rule of law: authority and intelligibility
Rule of law means rule by written law as opposed to arbitrary power: “the exercise of all public power must find its ultimate source in a legal rule.” In order to not run afoul of this principle, any act of a government body must (1) be authorized by law and (2) the law must be sufficiently clear, accessible, and precise so that people can conduct themselves in accordance with it. We can refer to these two “branches” of the rule of law with terms such as (1) vires, jurisdiction, and authority, and (2) intelligibility, clarity, and precision.
The question of vires is primary. Does the state official have statutory authority to act? Does the regulatory body have jurisdiction over the activity or parties it purports to regulate? Does the court or tribunal have jurisdiction over the subject matter of the case? If the answer is no, the act or decision of the government body in question is not authorized by law and is void.
The vires question has been raised in the TWU litigation in all three provinces. It arises at the outset. Does the law society’s enabling legislation authorize it to scrutinize TWU’s Community Covenant in deciding whether or not to recognize TWU degrees? The jurisdiction question was conclusive in the Nova Scotia Court of Appeal’s recent ruling in TWU’s favour, in which the Court found that the Barristers Society lacked statutory authority to pass a regulation enabling it to make freestanding decisions on whether or not a university “unlawfully discriminates”. In Ontario and B.C., however, so far (we await the Court of Appeal ruling in B.C.) the courts have found that the law societies acted within their jurisdiction in scrutinizing the Covenant because they have a statutory mandate to protect the public interest, and accepting graduates of a school with such a policy supposedly raises public interest concerns.
But even if a government actor can point to a statutory provision as authority for its action, if its action limits a Charter right or freedom (which has been the finding of every court in the TWU litigation to date) it must also satisfy the “prescribed by law” standard of section 1 of the Charter, meaning that persons subject to that state actor’s authority must have sufficient information on how to conduct themselves in order to meet the applicable legal standards. Whereas the question of vires or authority logically comes first, once it has been established that the state actor had authority to act and acted in a way that limits a Charter right or freedom, the onus is on the state actor to defend its action using section 1 of the Charter.
The neglected “prescribed by law” requirement
Ordinarily, the question of whether part of a statute, regulation, rule, or policy is sufficiently clear and precise is raised when the statute, regulation, rule, or policy itself is being challenged as violating the Charter. The prescribed by law requirement is often neglected in judicial review of administrative action under the legal framework set out by the Supreme Court of Canada in Doré (2012 SCC 12). Why? The Doré framework is designed for and applied to situations where an administrative decision is the cause of the limitation on Charter rights. The question addressed by the Doré analysis is whether the decision maker limited a Charter right in a manner proportionate to the advancement of a statutory objective. Doré was designed to overcome the difficulties of applying the more formal and formulaic Oakes analysis to administrative decisions (rather than statutory provisions, regulations, or rules)—decisions that may take many different forms and involve the discretionary weighing of many different factors.
The growth of the administrative state has been facilitated through legislation granting authority to administrative bodies to make discretionary decisions and to establish their own policies and rules to guide their decisions. In TWU’s case, the law societies had statutory authority to set academic requirements and to pass related rules. The question is whether they used that authority in a manner that was intelligible and predictable such that it satisfies the “prescribed by law” requirement. To the extent that the Doré framework has resulted in the neglect of this requirement and encouraged discretionary decision making unguided by accessible and precise standards, it is in need of correction.
The point of the “prescribed by law” requirement is that people should be able to know in advance how to conduct themselves (individually or corporately) in order to obey the law or satisfy the standards of a regulatory body and, if their rights are limited, to be able to decipher how and why their rights have been limited so that they can hold the government accountable.
If a group of co-religionists associate to form an institution for the purpose of studying law—to the level of academic excellence the statutory gatekeeper may legitimately require—while corporately committing to living in accordance with a religious ethic, what elements of their religious ethic can or cannot be included in the community’s code of conduct? What kinds of religious expression, if any, can a university support and still have its graduates accepted by the law societies? Might any explicit religiosity in a school make some people feel less welcome than others and, if so, is it permissible? Or if religious individuals who attend public universities wish to be admitted to the bar, can they know in advance whether or not and how their religious expression or membership in religious associations could impact their eligibility to join the bar?
Were the LSBC’s and LSUC’s decisions prescribed by law?
In order to be “prescribed by law”, the decisions of the law societies must be based on a statutory provision, regulation, or rule that places discernible limits on the discretion to determine a person’s (or group’s) eligibility for admission to the bar. As the SCC stated in Irwin Toy v Quebec (AG), “where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances, there is no ‘limit prescribed by law’.”
After the LSBC learned that TWU had submitted a proposal for a new law school to the Federation of Law Societies, it might have passed a rule saying, for example, “A law degree obtained from a university that requires its students to abstain from lawful sexual activity shall not satisfy the academic qualifications required for enrolment in the admission program.” In that case, it would be clear to everyone what standard TWU’s law program failed to satisfy, the rule itself might have been subject to a Charter challenge, and the court might have conducted an Oakes analysis of the rule itself. Instead, the LSBC passed an open-ended rule that (on its face) appears to allow it to reject law degrees from any law school by a simple majority vote. The LSBC seems to believe this makes passing s. 1 scrutiny much easier. From a rule of law perspective, this is disconcerting. The LSUC likewise does not have any criteria governing whether or not it will accredit a school.
Allowing a law society to operate in such a manner jeopardizes the rights of those who are or wish to become licensed members. Making decisions affecting Charter rights based on open-ended, criteria-free rules or bylaws is fundamentally at odds with the rule of law, which protects rights and freedoms first by precluding plenary discretion. The rule of law is the first friend of fundamental freedoms. The rule of law requires intelligibility and predictability. Today, law societies claim that the allegedly discriminatory (though not unlawful) effect of TWU’s Covenant justifies rejecting TWU. Tomorrow, they might decide that TWU’s (or another school’s) hiring policy is problematic or that its faculty’s publications are offensive. Based on the LSBC’s Rule 4.1 and the LSUC’s ByLaw 4, it appears that any reason will do.
The focus has been on the Covenant’s alleged discriminatory impact on LGBT students, but its alleged problems go beyond that. For example, the Ontario Divisional Court said TWU’s discrimination also extends “to women generally; to those persons of any gender who might prefer, for their own purposes, to live in a common law relationship rather than engage in the institution of marriage; and to those persons who have other religious beliefs.” The implication of this passage seems to be that TWU might have to abandon much of its religious identity in order to please the law society. It isn’t clear at all, of course, how much TWU would have to change, and that is the problem.
Discretion, administrative guidelines, and the “prescribed by law” standard
We can compare TWU’s case with Bonitto v Halifax Regional School Board, in which a school principal prohibited the plaintiff from distributing tracts at a public school. The plaintiff in Bonitto argued that the principal’s decision was not prescribed by law. The Court found against the plaintiff on this point, because the principal’s discretion to (dis)approve materials was subject to a policy the School Board passed pursuant to its enabling legislation. The Board’s policy required the principle to consider a published list of factors respecting the potential impact of a given publication on the school environment. The Court noted that the legislation and the Board’s guidelines together were “sufficiently precise and accessible” to govern the principal’s discretion and therefore satisfied the “prescribed by law” requirement.
From this we can surmise that when legislation grants discretionary power to administrative bodies to make decisions affecting Charter rights and freedoms and to pass their own rules or policies to guide the exercise of their discretion, that those bodies must pass sufficiently precise rules in order to satisfy the “prescribed by law” requirement, if the enabling statute on its own does not provide a sufficiently precise standard.
In TWU’s case, unless the law societies’ statutory duty to protect the public interest is interpreted as TWU argues it ought to be—as limited, in the context of deciding whether to recognize a law degree, to concerns regarding the degree holder’s character and competence—the standard of “public interest” must fail section 1 scrutiny. In another case, Ktunaxa Nation v British Columbia, Ktunaxa Nation does an fine job (in its factum on appeal to the Supreme Court of Canada) of explaining why this is so. Ktunaxa Nation, an Aboriginal First Nation, claims that the B.C. Minister of Lands, Parks, and Housing has violated its freedom of religion by granting permission to a developer to build on Crown land in which it claims a spiritual interest. The Minister has statutory power to dispose of Crown land when he considers it “advisable in the public interest”. Ktunaxa Nation does not challenge the validity of that statute, but argues that a decision based on that statute limiting its religious freedom cannot satisfy be considered prescribed by law because, as the Supreme Court has said, the public interest is “so vague as to provide no meaningful guidance and so broad as to be unworkable as a test for the justification of a limitation on constitutional rights.” The Court has also said that while vagueness can be used to attack a law directly, it can also be raised under s. 1 of the Charter (as CLF has done in its TWU interventions).
In the LSBC’s case, rather than add guidance for exercising its discretion to establish requirements for admission to articling and practice under the Legal Profession Act, its Rule appears to attempt to broaden the LSBC’s discretion beyond that granted by its enabling statute. In Ontario, while the LSUC did not change its rules while TWU was seeking accreditation from the FLS, its existing bylaw saying simply that an accredited school is “a school accredited by the Law Society” is similarly vague. At least the NSBS passed a Regulation with a criterion: it could reject a degree from a school that “unlawfully discriminated”, the Regulation said—though the Court found this Regulation to be ultra vires. From a rule of law perspective, the merit of the path that the NSBS took was that it attempted to actually set a standard, which could then be and was scrutinized.
Publish and defend intelligible criteria
Vague rules may not ordinarily come under scrutiny, but where decisions are made based on such rules that have the effect of limiting Charter rights, the rules on which those decisions are based must satisfy a certain standard of intelligibility in order for the decision to pass s. 1 of the Charter.
Courts should avoid inadvertently encouraging law societies (or other regulatory bodies) to pass vague rules or policies to guide their decision making out of the belief that doing so makes it easier to prevent or withstand judicial review where their decisions infringe Charter rights and freedoms. People deserve to know in advance what factors are relevant to becoming eligible for admission to the bar. If that means passing a rule like the NSBS’ Regulation, fine. A law society’s criteria for admission to the bar should be intelligible and publicly available, and it should be prepared to defend them.
 The LSBC Benchers initially voted (on April 11, 2014) against a motion to deny approval of TWU notwithstanding the approval of the Federal of Law Societies. Later that year (September 26), the LSBC Benchers voted down another motion to reject TWU graduates, but approved a motion to put the question of whether to approve TWU to a referendum of LSBC members and to be bound by its outcome. The B.C. Supreme Court found that this amounted to an impermissible fettering of its discretion on the part of the LSBC: Trinity Western University v. The Law Society of British Columbia, 2015 BCSC 2326 at para 120.
 Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island,  SCJ No 75,  3 SCR 3 at para 10.
 The Nova Scotia Barristers’ Society v Trinity Western University, 2016 NSCA 59.
 If you are not up to date on the court rulings, check out TWU-related blog posts on our website: www.christianlegalfellowship.org.
 Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31 at para 50.
  1 SCR 927 [Irwin Toy].
 TWU has argued, sensibly, that the Court should interpret LSBC’ Rule by reading it in light of the LSBC’s authority to set “academic requirements” for entry to articling and the bar, which would make TWU’s non-academic policies not affecting the competence and character of its graduates irrelevant. A similar line of argument is advanced by TWU with respect to LSUC’s bylaw. Indeed, if an interpretation limiting the scope of the discretion a rule or bylaw grants is available and reasonable, the Court should adopt it. Alternatively, the Court could find that the rule or bylaw does not set intelligible limits on the LSBC’s discretion, meaning a decision to reject TWU graduates cannot be justified under s. 1 of the Charter if it is based on such a rule or bylaw.
 2015 ONSC 4250, at para 104.
 With the growth of the administrative state and statutory grants of discretion, Paul Daly has suggested an obligation to add precision by adopting rules and guidelines as a solution to the post-Doré confusion in his working paper, “Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms”, November 2013, University of Ottawa Working Paper Series.
 R. v Sparrow,  1 SCR 1075, at 1113, cited in the Factum of the Appellant Ktunaxa Nation on appeal to the Supreme Court of Canada at para 95.
 R. v. Nova Scotia Pharmaceutical Society  2 SCR 606 at para 28, cited in the Factum of the Appellant Ktunaxa Nation on appeal to the Supreme Court of Canada at para 95.
 The standard set in NSBS’ Regulation was problematic because NSBS is not a human rights tribunal and cannot give itself power to make findings of human rights law violations, and because neither Nova Scotia human rights law nor the Charter applies to TWU.
"Sex, Drugs, and Assisted Dying" is the theme of the latest edition of Law Matters, a publication of the Canadian Bar Association - Alberta Branch. CLF's Derek Ross and John Sikkema have contributed an article examining the broad and far-reaching societal and ethical implications of euthanasia.
John Sikkema and Derek Ross
The Alberta government is directing Albertans seeking information about “medical assistance in dying” (MAID) to contact Alberta Health Service’s “central care coordination service” or to initiate a discussion about medical assistance in dying with their family physician or specialist.
As for physicians in Alberta, a Ministerial Order requires that those who receive a request for MAID, but who decline “for reasons of conscience or religion to provide or to aid in providing [MAID]”, must ensure the patient has timely access to Alberta Health Service’s coordination service.
Thankfully, the government has decided against requiring physicians who conscientiously object to participating in MAID to provide “effective referrals” – that is, to find a physician who is known to be a willing MAID provider and to refer his or her patient to that other physician. Alberta’s system allows physicians who object to MAID to keep their patients. The initiative to find a MAID provider remains with the patient. As for the way the “coordination service” will operate, Alberta Health Services says its teams are available to discuss all end of life options, including MAID, and can connect patients with palliative care providers. We hope the goal is always to encourage “alternatives” to assisted suicide and euthanasia and we intend to look further into how the coordination service actually operates.
It is our view, however, as expressed in our submission to the Alberta government, that the provinces are not obligated to fund or facilitate medically assisted suicide or euthanasia, or to require anyone else to do so. The Carter decision simply rendered the complete criminal prohibition on such practices invalid.
Alberta’s adoption of the “central care coordination service” follows its public consultations on the issue of medically assisted suicide and euthanasia in March of this year, in which CLF participated. On May 27, Alberta Health released a report on these consultations entitled “What We Heard: Medical Assistance in Dying”.
“What We Heard” reports that 55% of people who completed its survey said physicians who do not wish to provide medical assistance in dying should refer to a physician who does, while 27% said the physician should refer to a resource that would provide information and the remainder either had no opinion or said the physician should not be required to provide any kind of referral.
CLF’s opposition to requiring effective referral for MAID is specifically cited in Alberta Health’s report. “On the matter of physician referral, opinions varied,” the report notes. It continues (page 10):
Some felt that physicians with moral or religious objections should not be compelled to make a referral to another physician or a third party.
“Provincial legislation should not require, and should preclude the College of Physicians and Surgeons of Alberta from requiring, physicians to provide effective referrals for PAD. The requirement to provide a referral would clearly and unjustifiably interfere with freedom of conscience because it forces physicians to participate in an act to which they are conscientiously opposed.” – Submission from Christian Legal Fellowship
The report is organized according the following subjects: eligibility for MAID, protections for vulnerable persons, administration of MAID, conscientious objection, reporting and monitoring, and palliative care.
Of course, federal law (Bill C-14) sets out the basic requirements for eligibility, safeguards, and reporting, but provincial law and policy play an important role in how MAID is provided in practice. Since the federal law does not contain any concrete protections for physicians or others against being required to provide or participate in MAID – though it says that “nothing in this Act affects the guarantee of freedom of religion” – provincial law and policy are especially important when it comes to freedom of conscience and religion.
CLF has urged provincial governments and medical regulatory bodies not to place the burden of ensuring that patients who want MAID get it on individual health care workers or even health care facilities. Alberta has avoided this by establishing a central information and coordination service. By contrast, the policies of the physicians’ colleges of Ontario (CPSO), Nova Scotia (CPSNS) and Saskatchewan (CPSS) currently require a physician to provide “effective referral” if he or she objects to providing what the patient requests.
CPSO’s effective referral policy is currently the subject of a constitutional challenge, which CLF is monitoring closely. Alberta’s policy is an encouraging development and provides an important illustration of how freedom of conscience and religion can be accommodated.
On July 26, 2016, the Nova Scotia Court of Appeal issued its decision in the matter of Trinity Western University (TWU) and the Nova Scotia Barristers Society (NSBS). The Court of Appeal’s ruling upheld the decision of Justice Campbell in the Court below, in favour of TWU.
Justice Campbell ruled last year that the NSBS’ decision to not recognize law degrees from TWU’s proposed law school - despite that school satisfying the standards of the Federation of Canadian Law Societies - was made without legal authority and was an unjustified infringement of freedom of religion.
The Court of Appeal affirmed Justice Campbell’s conclusion on the former issue – that the NSBS had no legal authority to do what it did. However, the Court of Appeal did not address the issue of whether or not the NSBS unjustifiably infringed TWU’s or its students’ Charter rights or freedoms.
CLF intervened in this matter out of a concern for its implications for the freedom of lawyers and law students to associate on the basis of shared religious beliefs and ethical commitments. In its factum, CLF explained how the NSBS decision violates religious freedom and undermines the public interest in the process. CLF also argued that the NSBS improperly invoked the Charter as justifying its decision, effectively demanding conformity with its interpretation of the Charter from a religious institution which is not subject to the Charter.
Background: NSBS’ resolution and regulation
By way of brief factual background, in 2014 the NSBS passed a Resolution saying that it would not approve TWU’s law school unless TWU excluded law students from its Community Covenant. After that Resolution passed, the NSBS amended its regulation governing what constitutes an approved law degree to say that if the NSBS Council “determines that the university granting the degree unlawfully discriminates in its law school admissions or enrollment policies or requirements on grounds prohibited by either or both the Charter of Rights and Freedoms and the Nova Scotia Human Rights Act”, then the University’s degree would not be a “law degree” in Nova Scotia.
TWU successfully challenged both the Resolution and amended Regulation in the Nova Scotia Supreme Court. The NSBS appealed to the Court of Appeal.
The limits of NSBS’ jurisdiction
The Court of Appeal found that the NSBS did not have authority to pass a Regulation purporting to (retroactively) give itself the authority of a human rights tribunal to determine whether TWU had violated human rights law.
The NSBS determined, as if it were a court or tribunal - but without the procedures of either - that TWU “unlawfully discriminates” based on laws that do not even apply to TWU. The Court found that not only did the NSBS lack the authority to make "freestanding determinations" of whether provincial human rights law had been violated, the process by which it did so “circumvents every step of [the Human Rights Act's] process.”
Even if the NSBS did act within its authority, however, the Court also unanimously concluded that TWU does not unlawfully discriminate, and that it was unreasonable for the NSBS to determine otherwise.
Individual students are "vital stakeholders"
The NSBS acknowledged TWU's graduates would be adequately prepared to article in Nova Scotia and no more likely than anyone else to discriminate in practice. The NSBS' stated concern was with TWU, not its graduates. The Court of Appeal confirmed Justice Campbell's finding that the NSBS' aim was to pressure TWU to change its policy. However, the NSBS' decision affects the would-be TWU graduate who is, as the Court says, "not Trinity Western's alter ego" but a "vital stakeholder in his or her own right."
Derek Ross, CLF's Executive Director and co-counsel in this intervention, comments:
"In its haste to condemn what it characterized as a discriminatory admissions policy at TWU, the NSBS itself circumvented important human rights protections to which TWU and its students are entitled. The Court of Appeal's decision recognizes this, and serves as a reminder that the NSBS must be careful not to penalize individual graduates based on its views about TWU. Doing so would be difficult to justify under its statutory mandate to protect the public interest ‘in the practice of law’ because the TWU graduate, as the Court of Appeal notes, would have the same ability to practice law as the graduate of another school."
Deina Warren, who served as CLF's legal counsel in this intervention, adds:
"While the Court gives room to the NSBS to craft new regulations that would bring some or all aspects of the process for approving law degrees in-house, the scope of any new regulation must be limited to the public interest in the specific context of the practice of law. This makes the NSBS’ stated public interest concerns about diversity too broad. It is also a merely theoretical concern when compared to the real, tangible concerns of the TWU law graduate who is a ‘vital stakeholder’, and should be considered part of the diverse profession the NSBS aspires to support."
TWU lost its appeal in the Ontario Court of Appeal last month and has announced that it will appeal to the Supreme Court of Canada. A decision of the British Columbia Court of Appeal is still pending. CLF intervened in both of those hearings also, and remains committed to defending the fundamental freedoms of religious lawyers and law students as matters progress.
To read the Nova Scotia Court of Appeal’s decision, click here.
To read CLF’s written submissions to the Nova Scotia Court of Appeal, click here.
Last month, in R v DLW (2016 SCC 22), a majority of 6 of 7 judges of the Supreme Court of Canada (SCC) ruled that the offence of bestiality in section 160 of the Criminal Code prohibits penetrative sex with an animal, but does not prohibit other kinds of sexual conduct with animals.
The Court did not declare a constitutional right to such conduct. The Charter of Rights and Freedoms played no role whatsoever in the decision. The issue was one of statutory interpretation: the legal meaning of the term “bestiality” as it was adopted into the Criminal Code in 1954 and further amended in 1987. While there have been bestiality convictions in Canada for non-penetrative sexual conduct with animals under section 160, it is misleading to describe the SCC’s DLW ruling as “legalizing bestiality”. The ruling did not reverse any SCC or appellate court precedent.
That said, the case raises important questions about how morality informs the meaning of terms used in the criminal law and whether the meaning of a term can evolve in light with social mores.
The accused was charged under section 160(1) and (2) of the Criminal Code:
160 (1) Every person who commits bestiality is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
Compelling the commission of bestiality
(2) Every person who compels another to commit bestiality is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
Bestiality in presence of or by child
(3) Despite subsection (1), every person who commits bestiality in the presence of a person under the age of 16 years [formerly 14 years], or who incites a person under the age of 16 years [formerly 14 years] to commit bestiality,
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
Prior to 1955, the Code prohibited “buggery, either with a human being or with any other living creature”. In 1954 (coming into force in 1955), that provision was changed to prohibit “buggery or bestiality”. In 1987 (in force in 1988), this was separated into two separate offences, one prohibiting “anal intercourse” in certain circumstances, the other—now section 160, above—prohibiting “bestiality”.
Convicted at Trial
The facts of the case are disturbing. The victims of DLW’s abuse were his two step-daughters. DLW’s abusive actions were many and stretched over a period of years.
The accused in R v DLW was convicted at trial of sexual assault, sexual interference, invitation to sexual touching, sexual exploitation, making child pornography, possession of child pornography, and bestiality.
DLW was acquitted at trial on the charge of compelling a person to commit bestiality under s. 160(2) because his actions were found to not amount to compulsion. The Crown commented in its factum to the SCC that this finding was questionable, but did not challenge this finding on appeal. DLW was not charged under s. 160(3)—inciting a child to commit bestiality—because at the time of the offence the age of consent was 14 (since changed to 16), which was also the victim’s age at the time.
However, DLW was found guilty of bestiality under s. 160(1) as a party to the offence—as an aider and abettor of the offence—his step-daughter being the (uncharged) principal. The trial judge, while acknowledging the uncertainty around the legal meaning of the term bestiality, found that the conduct in this case fit within the meaning of that term, explaining:
 … Physical harm is not an essential element of bestiality; that is because, like many sexual offences in the Code, the purpose of the bestiality provisions is to enunciate social mores. Those mores include deterring non-consensual sexual acts and animal abuse.
 The legislature makes clear that Canadians view bestiality as a sexual crime. Section 160 must be read in a modern context. Sexual offences no longer require full penetrative acts to be committed. […]
 In my view, “bestiality” means touching between a person and an animal for a person’s sexual purpose. This is reflected in the numerous guilty pleas entered on charges under s. 160 where the bestiality consists of an animal licking a person’s genitals. It is also consistent with the entire scheme of the Code, including the provisions under “Offences Tending to Corrupt Morals”, “Cruelty to Animals” and other provisions under “Sexual Offences”.
 […] As stated in R. c. Ma.Gi., the theory that bestiality requires penetration is “frozen in time” (at para. 44). The Court pointed out that historically, sodomy and bestiality were treated in a similar manner, and at the same time, penetration was an essential element of rape. Those laws have been changed by significant reformation to the Code; for instance, sexual assault does not depend solely on contact with specific parts of anatomy: R. v. Chase,  2 S.C.R. 293 at 301. […]
 It is clear that the interpretation of “bestiality” must reflect current views on what constitutes prohibited sexual acts.
The problem the trial judge’s approach raises is that it seems to suggest the legal meaning of “bestiality” can change with the times, without a definitive amendment. If judges could interpret terms in the Criminal Code based on “current views”, it would mean the law could change without Parliament’s involvement. While it used to be that new crimes were “created” in common law, it has long been a rule in Canada that there can be no common law crimes, except for contempt of court. As a rule, what is criminal is only that which is clearly spelled out as such in statutory law.
Conviction Overturned by Court of Appeal in Split Decision
DLW appealed his conviction for bestiality. The sole issue on appeal was whether the offence of bestiality requires penetration. The Criminal Code used to prohibit “buggery either with a human being or any other living creature”—an offence which required penetration. In 1954, the phrase “either with a human being or any other living creature” was removed and “or bestiality” took its place. In 1988, two separate offences came into force, one for “anal intercourse” and the second for “bestiality”.
The majority (two out of three) of the British Columbia Court of Appeal ruled that bestiality requires penetration because the term “bestiality”, according to its reading, effectively stood in the place of the offence previously known as “buggery with an animal”. Buggery was understood to involve penetration. Had Parliament intended to expand the scope of the offence, then “clear and definitive language” would have been necessary to outlaw the activity in question, the majority reasoned.
The dissenting judge took a different view of the original meaning of the term. He reasoned that the 1954 amendment removed the penetration requirement implicitly by creating two separate offences: buggery and bestiality. If bestiality simply meant “buggery with an animal”, then the inclusion of “or bestiality” would be superfluous. The dissenting judge also reasoned that requiring penetration would lead to absurdity, since it would not prevent an adult from inciting a minor to have oral sex with an animal.
SCC Majority Upholds Court of Appeal Ruling
The Crown appealed the Court of appeal ruling. The SCC heard the appeal on November 9, 2015.
Justice Cromwell, writing for the majority of 6 out of 7 judges, explained that the term bestiality had a clear legal meaning historically, that penetration has always been an essential element of the offence, and that the Court must not expand the scope of criminal liability through interpretation, though Parliament can do so by amendment if it so chooses. As a rule, courts will only conclude that a new crime has been created if the words used to do so are “certain and definitive” (para 59). By removing the phrase “either with a human being or with any other living creature” and introducing the term “bestiality”, Parliament was codifying the distinction between penetration with humans and penetration with animals that had already been established in the common law. This simple amendment, which was made in 1954 without any discussion in Parliament, did not constitute a clear expansion in the scope of the offence.
The majority further observed that the French version of the Criminal Code used the term bestiality already before 1954. Thus the amendment to the English version, in the majority’s view, “appears to be simply the substitution of a more precise legal term in the English version” (para 77). Furthermore: “The fact that no substantive change occurred in the French version of the offence [in 1954] leads us to conclude almost inevitably that the change in terminology in the English version was simply intended to give the offence a clearer, more modern wording which would be more consistent with its French equivalent” (para 96). The 1987 amendments, which separated bestiality into a separate section, did not add a definition to the term “bestiality” or otherwise establish that it had a different meaning than when that term was introduced into the English version of the Code in 1954.
Justice Abella Dissents
Justice Abella dissented. She reasoned that although bestiality was never defined in the Code, its addition in 1954 “must have been intended to mean something different from ‘buggery’”, otherwise, there was no reason to change the text of the provision. Like the dissent at the Court of Appeal, Justice Abella noted that no legislative term should be interpreted so as to render it “mere surplusage” (para 143). She agreed that the term was ambiguous and affirmed the principle that ambiguity should be resolved in favour of the accused where possible, but decided that the only sensible interpretation of the term would include the conduct at issue in this case.
Other amendments in 1954 to the Code’s animal cruelty offences, Justice Abella reasoned, reflected an increased recognition of the importance of animal welfare and expanded protection to all animals. Parliament’s purposes would have been inconsistent if the animal cruelty provisions applied to all animals as of 1955 (when the 1954 amendments came into force) but bestiality only applied to those animals with anatomy that permitted penetration. Justice Abella noted further that the 1987 amendments not only separated bestiality in to a separate section of the Code, but also made it an offence to compel the commission of bestiality or to commit bestiality in the presence of a child. Justice Abella concluded that “what Parliament must have intended was protection for children from witnessing or being forced to participate in any sexual activity with animals, period” (para 147).
On the issue of broadening criminal liability without “certain and definitive” legislative language, Justice Abella said that the absence of a requirement of penetration does not broaden the scope of the offence. Rather, the offence was always intended to prohibit sexual exploitation of animals and “[a]cts with animals that have a sexual purpose are inherently exploitative whether or not penetration occurs” (para 149).
The majority expressed concern that the trial judge’s interpretation of the bestiality offence “could have the effect of turning the victim into an offender” (para 8), but Justice Abella explained why the trial judge’s interpretation of the offence is not problematic, since “it is inconceivable that bestiality charges would ever be laid against someone in D.L.W.’s stepdaughter’s circumstances” (para 152). She did not want to engage in such conduct and was punished by her step-father for refusing or hesitating to do so.
Of course, reading “bestiality” narrowly, as the majority did, would do nothing to resolve the majority’s concerns about a victim appearing to be the principal in any case actually involving penetration. In fact, DLW had tried but failed to make his step-daughter have penetrative sex with an animal in this case. The majority’s concern here is a distraction from the issue of the meaning of “bestiality”. In any case, Justice Abella addresses this concern in the only sensible way by pointing out that the young victim clearly does not have the requisite mens rea in this case.
Animal Rights Group Interveners
The intervener Animal Justice, an organization dedicated to advancing the interests of animals in the law, became one of the only groups of animal welfare advocates to have made submissions on behalf of animals in any court in the country.
In its factum, Animal Justice argued that section 160 does not exist “exclusively to protect human morals” and had as one of its key objectives deterring the improper use of animals. It accepted that safeguarding children was also an objective of subsections 160(2) and (3). Animal Justice also argued that “[a]ny crime premised on immorality must reflect contemporary Canadian values relevant to the offence”, which in this case must include “the need to protect vulnerable animals” and “the wrongfulness of sexual conduct involving the exploitation of non-consenting participants.”
The trial judge believed that “the purpose of the bestiality provisions is to enunciate social mores” and tied this offence both to “Cruelty to Animals” offences and “Offences Tending to Corrupt Public Morals”. Canada’s precursor to the Criminal Code was An Act respecting Offences against Morals and Public Convenience (1886).
SCC Justice Abella noted in passing that the common law origins of the offence of buggery “were ecclesiastical, and emerged in full moral force from the Church’s hegemonic jurisdiction over sexual offences and its abhorrence for non-procreative sexual acts, which were condemned as being ‘unnatural’” (para 132).
Justice Cromwell for the SCC majority noted that some commentators have suggested our understanding of bestiality as an offence should move away from making public morals primary and towards seeing bestiality as a type of animal abuse (para 69). Justice Cromwell did not express an opinion on this matter, but simply noted that the discussion about how society’s views on bestiality today raise “important points of penal and social policy”, which are “matters for Parliament to consider, if it so chooses” (para 70).
For its part, the Crown relied most heavily in its factum on the protection of children as the legislative purpose that should inform the meaning and scope of the term “bestiality”. The 1987 amendments, the Crown noted, “were made as part of a legislative package designed to address the perceived gaps in the Criminal Code that dealt with child sexual abuse in order to protect children from all forms of sexual abuse.” The bestiality provision was, the Crown contended, modified in 1987 according to this underlying purpose. It therefore followed that reading the provision narrowly “would overlook the significant physical and psychological trauma to victims caused by sexual activities with animals other than by intercourse, and thus would not give full effect to the underlying purpose of the legislation.”
The Crown also argued that bestiality is an offence against social mores and must therefore be understood as prohibiting sexual acts between humans because such acts “offend fundamental social values of the community.” Furthermore, “Common sense suggests that [DLW’s] conduct in encouraging and facilitating his vulnerable young stepdaughter to have oral sex with the family dog is on an equal moral plane as if he had arranged for her to have penetrative sex with the family dog.” It would be absurd to acquit the accused for the former when he would obviously be liable under s. 160 for the latter.
The respondent (DLW) argued that the offence of bestiality is “addressed to the moral hygiene of persons”, but argued further that the offence in subsection 160(1)— “bestiality simpliciter” —is not aimed at “any purported harm to other persons or even the animals involved in the conduct.” While protecting children is clearly the purpose of subsections 160(2) and (3), that cannot by itself change the meaning of the term bestiality, the respondent submitted: “The appellant seeks to have this Court impermissibly shift the purpose of the offence of bestiality simpliciter in s.160(1) to one of preventing harm to children, and from that new, impermissible purpose to argue that the offence must be of broader scope than at common law and, possibly, under the 1954 amendments.”
As for the Crown’s argument that a narrow reading of bestiality leads to absurd results, the respondent said, “The appellant confuses absurdity with the appellant’s dissatisfaction with the scope of the offence. Just because an interpretation does not give the provision the scope that a party would like does not make it ‘absurd’.” A narrow interpretation would only be absurd if it rendered the provision pointless or futile, the respondent argued, and the SCC majority agreed: “There is nothing ‘absurd’ about protecting children from compulsion or exposure to this sort of sexual conduct [intercourse with an animal].”
Competing Interpretive Principles
On the one hand, the Crown called on the court to interpret the term “bestiality” in light of what it argued were the underlying purposes of section 160: prohibiting conduct that offends fundamental social mores and protecting children. On the other, the respondent (defence) argued that while the Crown may not be satisfied with the scope of the offence, bestiality had an accepted legal meaning that Parliament did not explicitly expand in its 1954 amendment when the term first became part of the English version of the Criminal Code.
Interestingly, the respondent also affirmed that bestiality was an offence against deeply held social values, rooted historically in the Church’s teaching that all intercourse besides vaginal intercourse between a man and woman was unnatural and immoral. The respondent noted that the SCC in 2003 mentioned bestiality as an example of “crimes that rest on their offensiveness to deeply held social values rather than on Mill’s ‘harm principle’.” The respondent used this to counter the Crown’s argument that the purpose of preventing harm to children supported a broad interpretation of “bestiality”. By agreeing that bestiality was about public morals but pointing out how, even so, the term historically had a legal meaning that was restricted to intercourse—a meaning Parliament is deemed to have known in 1954—the respondent countered the Crown’s argument that underlying social mores favour a broad interpretation.
What was missing was any substantive discussion of the wrongness of the conduct itself. The SCC majority hung its hat on the predominant legal understanding of the term at the time it was introduced, with any ambiguity being resolved in the accused’s favour. Justice Cromwell for the majority noted simply that commentators suggest moving away from a public morality perspective on this offence to a concern with animal abuse, but did not take any position on the matter. Justice Abella based her reading of the term on the objectives of protecting children and animals from abuse and harm.
The final outcome with respect to DLW is that he was not convicted of any crime for this particular act. That is an appalling outcome. People can be forgiven for wishing the SCC had focused on the result and resolved any ambiguity in the law in favour of a just and sensible outcome.
However, the SCC did reach its decision in this difficult case by applying important interpretive principles that give the accused the benefit of the doubt and limit the role of courts in defining criminal liability. And unlike some criminal cases involving the Charter, the Court did not create any constitutional hurdles for Parliament to work around when it comes to a legislative response. Parliament is free to enact a clear definition of the term.
Last July, the Divisional Court of Ontario upheld the decision of the Law Society of Upper Canada (LSUC) to deny accreditation of Trinity Western University’s proposed law school. LSUC’s denial was based on opposition to TWU’s Community Covenant which, among other things, upholds a religious understanding of marriage and sexuality. TWU appealed.
CLF intervened in the appeal in support of the constitutional rights and freedoms of TWU and its students, submitting written arguments in late April and participating in the appeal hearing on June 6-7.
Today, the Ontario Court of Appeal upheld the Divisional Court’s decision.
The Court states at the outset of its judgement that one consequence of defining Charter rights broadly is that they may then either collide with important government objectives, or, more rarely, two broadly interpreted rights or freedoms may collide with each other.
This case, the Court concludes, falls into the second category: it supposedly involves “a collision between religious freedom and equality, both of which are protected in the Charter and both of which have been defined and interpreted in a generous fashion by the Supreme Court of Canada.”
Contrary to what the Law Society argued in its factum (but modified at the court hearing), the Court of Appeal affirmed that TWU’s freedom of religion was infringed by the Law Society’s denial of accreditation. Writing for the Court, Justice MacPherson also noted it was “readily apparent” that the religious freedom of Mr. Volkenant (the student co-applicant who sought to attend TWU) was engaged in this case:
"For Mr. Volkenant, attending TWU’s proposed law school would allow him to not only practise the Covenant’s values […] but also to participate in an educational community, consisting largely of like-minded individuals, that embraces values grounded in evangelical Christian beliefs about the conduct both prescribed and proscribed by the Covenant."
The religious nature of the choice to attend TWU was a major emphasis of CLF’s submissions. Derek Ross, CLF’s Executive Director and legal counsel in this proceeding, comments:
"The Law Society continued to argue that religious freedom was not even engaged in this case until the hearing of oral arguments in this appeal, despite the fact that every court that has considered TWU's proposed law school has determined the exact opposite. The Law Society's failure to recognize the comprehensive nature of a law student's faith and its relevance to the study and practice of law demonstrates, perhaps more than anything else, the need for a law school that does."
As for TWU as an institution, Justice MacPherson stated that “it is clear that freedom of religion under the Charter has a collective aspect” and that it too is engaged in this case.
However, the court did not fully address the scope and nature of the Charter infringement for Mr. Volkenant or other law students wishing to attend TWU. The court suggested that these students would still be free to attend an (unaccredited) law school at TWU in accordance with their religious beliefs. The Court concluded it would be premature to assess any violations of TWU graduates’Charter rights should they face some “alternate process to be admitted to the Bar of Ontario” as a result of attending an unaccredited law school.
Although the court acknowledged that this uncertainty would likely discourage prospective law students from attending TWU, it did so only in the context of considering TWU's ability to attract students, and did not address the impact this would have on the student herself. As CLF argued, that student has effectively been denied the opportunity to study law - in order to be a lawyer - within a Christian environment. Mr. Ross comments:
"The right to attend a religious law school, without the right to practice law, is an impoverished right. As the Supreme Court of Canada recognized in 2001, a student should not be denied a professional license because they choose to affirm their religious beliefs and attend a religious university such as TWU. Law students have the right to adopt personal rules of conduct based on their religious beliefs, not just as individuals, but collectively within a religious community, including in an accredited religious university. They should not be punished or disadvantaged by the state for exercising that freedom, which is the effect of the Law Society’s Decision."
As for the infringement of TWU’s religious freedom, the Court found that it was a reasonable limit on freedom of religion in light of the Law Society’s statutory objective to protect the public interest.
The Court agreed with the Divisional Court that the Trinity Western University v British Columbia College of Teachers decision of the Supreme Court of Canada in 2001 was not determinative of the outcome in this case, but was still an “an important consideration in the resolution of the issues that are presented to us”. Little attention was given, however, to a number of principles from that important precedent which continue to be relevant. These principles include:
- TWU is a private institution to which the Charter does not apply and which is exempted, in part, from human rights legislation;
- Consideration of human rights “values” encompasses consideration of the important place of private institutions in our society;
- Section 15 of the Charter protects equally against discrimination on the basis of religion;
- A private institution’s adoption of a voluntary code of conduct is not sufficient to engage section 15 rights, which apply vis-à-vis the state; and
- Freedom of religion is not accommodated if the consequence of its exercise is the denial of the right of full participation in society.
The Court of Appeal ruling is troubling for other reasons as well. It draws comparisons to the case of Bob Jones University, which involved a very different set of facts and a blatantly racist college policy. The Court also accepted the submission of one of the interveners that TWU discriminates “by forcing [LGBTQ persons] to renounce their dignity” and that LGBTQ persons at TWU “will experience the stigma of not belonging”. This despite the fact that TWU’s Covenant affirms the inherent dignity and equal worth of all persons and the evidence on the record shows that LGBTQ students have felt welcomed at TWU.
As CLF argued in its factum, “[T]he fact that a religious university encourages and helps students within a particular religious community to obtain an education is a social good. Simply because it serves people who affirm its religious beliefs, does not mean it does so at others’ expense.”
TWU has already announced that it will be appealing the decision. Decisions from Courts of Appeal in Nova Scotia and British Columbia, where CLF also intervened, are still pending. CLF remains committed to defending the fundamental freedoms of religious lawyers and law students as matters progress.
To read the Ontario Court of Appeal’s decision, click here.
To read CLF’s written submissions to the Ontario Court of Appeal, click here.
Bill C-14 is now the law in Canada. Physician-assisted suicide and euthanasia, in certain circumstances, are now both permitted by legislation. For the first time in Canadian history, patients can ask physicians to prematurely end their lives if they meet certain criteria, without prior judicial authorization.
CLF appeared in early May before Parliament’s Standing Committee on Justice and Human Rights to affirm suicide prevention as an important public policy goal and uphold the sanctity of life as a fundamental societal principle, to identify some of the Bill C-14’s deficiencies, and to make recommendations for improving the bill. Although some members of the Committee moved to adopt several of our recommendations, they were ultimately unsuccessful. Sadly, the bill was little improved by the time it passed.
Bill C-14 passed quickly: from first reading in House of Commons to Royal Assent took only two months.
That Parliament passed Bill C-14 while being bombarded with misleading rhetoric about the bill being unconstitutional for being too restrictive is encouraging. CLF, along with other organizations, has insisted that Parliament has both the authority and the responsibility to respond to the Carter ruling on its own terms and in furtherance of such crucially important statutory objectives as upholding the inviolability of life, preventing suicide (assisted or not), and upholding the inherent and equal worth of all persons. In his speech in the Senate on June 9, Senator Plett cited a Policy Options article written by CLF’s John Sikkema and Derek Ross on this point.
However, the bill leaves much to be desired. First, of course, it legalizes assisted suicide and euthanasia, which Parliament was not required to do. There were means available—including, but arguably not limited to, the Charter’snotwithstanding clause—to continue to prohibit these practices. Second, the bill legalizes assisted suicide and euthanasia using vague eligibility criteria and insufficient safeguards, which will make enforcement and monitoring very difficult.
In this blog, we sketch how the bill changed from its original version to the version that was passed into law last week. We have highlighted the differences between the actual text of the bill as originally tabled in April and the version that received Royal Assent, here. We explain the evolution of the bill below.
Only two procedural safeguards were added to what was already a meagre list. First, the bill as passed requires that if the patient has difficulty communicating, the physician or nurse practitioner must “take all necessary measures to provide a reliable means by which the person may understand the information that is provided to them and communicate their decision.” Second, the bill as passed states that a person signing a request for “medical assistance in dying”—this euphemism remains in the bill—on another’s behalf must “not know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death” (s. 241.2(3)(i)) and must do so “under the person’s express direction” (s. 241.2(4)).
CLF’s most significant recommendation regarding procedural safeguards was to require legal judicial authorization before carrying out euthanasia or assisted suicide. Although amendments requiring prior legal authorization were introduced by members of the House and the Senate, none of any kind were passed.
CLF also recommended removing the open-ended exemption for anyone who helps a person to self-administer a substance prescribed as part of the provision of MAID and to supervise the self-administration of the lethal drug, but no such amendments were made. This exemption is dangerous, as there is no oversight of the use of the lethal drugs once the prescription is received. The drugs could be used at any time or place, which raises safety concerns as well as the potential for patients to be pressured or deceived into taking the drugs by a third party (which could also be difficult to prove).
“Eligibility” for assisted suicide / euthanasia (AS/E) was not narrowed in any way, except that the informed consent requirement in the original version was amended to explicitly require that a patient be informed of “the means that are available to relieve their suffering, including palliative care” (s.241.2(1)(e)) before they give consent. CLF, along with other organizations, had recommended such a provision in its written briefs to both the House of Commons and the Senate.
The Senate amendment that had replaced the list of eligibility criteria in s. 241.2 with the requirement that a person simply “have a grievous and irremediable medical condition [that] has begun to cause enduring suffering that is intolerable to the person” was rejected by the House. This is significant in that only a patient whose death is “reasonably foreseeable” is eligible to obtain physician-assisted suicide or euthanasia. The Senate’s amendment, if accepted by the house, would have open-ended eligibility for patients who were not dying or even terminally ill. The bill as passed retains the original list of criteria, along with the amendment to informed consent as noted above.
In light of the trend in other jurisdictions for undefined terms to be interpreted loosely over time, CLF had recommended to the House and Senate committees that Parliament add precision to the requirement that the patient’s death be “reasonably foreseeable” by requiring that the assessing physicians be certain that the underlying illness(es) the patient has at the time the request is made will cause the patient’s death. However, no further clarification to this criterion was added.
As for reporting and data collection on the practice of assisted suicide and euthanasia, the bill as passed states that the Health Minister must (s. 241.31(3)) make regulations that he or she considers necessary respecting what information physicians, nurse practitioners, and pharmacists must provide to the government, whereas the first version of the bill said the Minister may make such regulations. The final version of the bill also directs the Minister of Health to “establish guidelines on the information to be included on death certificates in cases where medical assistance in dying has been provided” (s. 241.31(3.1)).
Freedom of conscience
While the bill as passed does not contain any positive measures to protect medical workers from being pressured to participate in assisted suicide or euthanasia, it is not, like the original version of the bill, completely silent on the issue. The following clauses were added to the preamble:
Whereas everyone has freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms; [and]
Whereas nothing in this Act affects the guarantee of freedom of conscience and religion;
Also, subsection 9 was added to section 241.2 of the bill to clarify that “nothing in this section compels an individual to provide or assist in providing medical assistance in dying.”
Providing information about MAID
Counselling or encouraging suicide remains illegal under Bill C-14. However, the final version of the bill states that “no psychologist, psychiatrist, therapist, medical practitioner, nurse practitioner or other health care professional commits an offence if they provide information to a person on the lawful provision of medical assistance in dying.”
CLF advised Parliament that, depending on the circumstances and manner in which such information is provided, the act of providing that information could have the effect of encouraging a person to seek medical assistance in dying, which remains illegal. While the bill as passed does not legalize counselling or abetting a person to commit suicide, it does allow a “social worker, psychologist, psychiatrist, therapist, medical practitioner, nurse practitioner or other health care professional” to tell a person how they can obtain “MAID”.
(Non-binding) Commitment to facilitate palliative care
The following was added to the preamble of the bill:
Whereas the Government of Canada recognizes that in the living conditions of Canadians, there are diverse circumstances and that different groups have unique needs, and it commits to working with provinces, territories and civil society to facilitate access to palliative and end-of-life care, care and services for individuals living with Alzheimer’s and dementia, appropriate mental health supports and services and culturally and spiritually appropriate end-of-life care for Indigenous patients.
Review of issues re: expanding eligibility
The only other significant amendment to the original bill that has been passed into law is the requirement that the Minister of Justice and the Minister of Health “initiate a review of issues” relating to expanding eligibility for “medical assistance in dying”. This provision states:
Mature minors, advance requests and mental illness
9.1(1) The Minister of Justice and the Minister of Health must, no later than 180 days after the day on which this Act receives royal assent, initiate one or more independent reviews of issues relating to requests by mature minors for medical assistance in dying, to advance requests and to requests where mental illness is the sole underlying medical condition.
(2) The Minister of Justice and the Minister of Health must, no later than two years after the day on which a review is initiated, cause one or more reports on the review, including any findings or recommendations resulting from it, to be laid before each House of Parliament.
CLF intends to remain involved in any consultative process surrounding the extension of “MAID” in these contexts.
Most amendments—and there were many—proposed in both the House and the Senate were rejected. In an earlier blog we mentioned some of CLF’s recommendations that were proposed as amendments by certain Members of the House but ultimately rejected.
As for the 15 amendments voted on by the Senate, only 7 passed. Of those 7, the House accepted 5. Of those 5, 2 were minor drafting corrections. The other 3 that passed in the House and are now part of the law were:
- Senator Eaton’s amendment clarifying that informed consent means the patient must first be “informed of the means that are available to relieve their suffering, including palliative care”;
- Senator Marshall’s amendment stating the Minister of Health must make reporting regulations; and
- Senator Eggleton’s amendment requiring Parliamentary committees to review issues related to expanding eligibility for MAID to minors, the mentally ill, and allowing advance directives.
Thankfully, as mentioned previously, the Senate amendment gutting the eligibility criteria was rejected by the House. The original eligibility criteria remain.
Senator Donald Plett’s amendment, which made it an offence for a person to help another person self-administer the prescribed lethal medication if they know or believe they would materially benefit from the death of the person seeking medical assistance in dying, passed in the Senate, but was rejected by the House.
Another of Senator Plett’s proposed amendments—which would have made it a crime to compel an individual, organization or medical practitioner to provide or assist in providing, or to provide a referral for MAID—was rejected by the Senate. This was an amendment CLF began calling on Parliament for in November of last year (see our submission, at pages 14-18, to the External Panel on Options for a Legislative Response).
Senator Denise Batters proposed that anyone with a mental illness—and who meets the eligibility requirements for assisted dying—be required to undergo a psychiatric assessment to ensure that person is capable of making decisions before being allowed to access medical assistance in dying. The Senate rejected her proposal.
Senator Batters had also proposed, following the Senate amendment replacing the eligibility criteria with the requirement that a patient simply have a “grievous and irremediable illness [that] has begun to cause enduring suffering that is intolerable to the person”, that being terminally ill and near death be added to this requirement. The Senate rejected this proposal.
Once the Senate had passed 7 amendments and the House sent the bill back to the Senate having accepted 5 of those 7 amendments, the Senate passed Bill C-14 as it received it from the House the second time without any further changes.
Unfortunately, as noted at the outset, passing Bill C-14 was a hasty process. There was insufficient time for adequate debate on important proposed amendments. Now that legislation is in place, however, CLF will look for opportunities to help Parliament improve its legislation. Such opportunities may come in the form of future consultations, for example. Hopefully Parliamentarians will remain engaged on this issue and be actively exploring ways to improve Canada’s euthanasia and assisted suicide laws—and especially, to uphold the inviolability of life and the intrinsic and equal worth of every life, to prevent suicide and the normalization of suicide, and to protect vulnerable persons from abuse. There is certainly room for improvement.
This article is provided for general information purposes only and does not constitute legal or other professional advice. Before acting on the basis of information contained in this article, readers should consult with a qualified lawyer for advice specific to their situation.
 Patients have been permitted to do so in Quebec since the Supreme Court's ruling in Carter 2016 in January of this year.
CLF intern Kinsey Brockie recaps the TWU v. Law Society of Upper Canada hearing at the Court of Appeal which took place earlier this month.
Last year, the Divisional Court of Ontario upheld the decision of the Law Society of Upper Canada (LSUC) to deny accreditation of Trinity Western University’s proposed law school. TWU appealed. On June 6-8, 2016, CLF, represented by Derek Ross, intervened at the Ontario Court of Appeal as a friend of the court, and in support of the constitutional rights and freedoms of TWU and its students.
With twelve intervenors, two parties, and standing room only in the courtroom, Mr. Robert Staley made submissions on behalf of TWU before a panel of three judges (Justices Macpherson, Cronk and Pardu). Five intervenors appeared in support of Trinity Western’s position (Seventh Day Adventist Church of Canada, Justice Centre for Constitutional Freedoms, Evangelical Fellowship of Canada/Christian Higher Education Canada, Association for Reformed Political Action, and Christian Legal Fellowship) and seven in support of the LSUC (Out on Bay Street/Outlaws, Canadian Bar Association, Canadian Secular Alliance, Lawyers’ Rights Watch, Canadian Civil Liberties Association, Advocates’ Society, and the Criminal Lawyers’ Association).
The arguments put forward by TWU and supporting intervenors appeared to be generally well received by the Court of Appeal. The judges put many of those arguments to the other side for clarification and discussion. The issue at the heart of this case was how to ensure that Charter rights and values, namely freedom of religion and association, are protected in light of the statutory objectives that govern access to the legal profession in Ontario.
CLF submitted to the court that studying in association with others who share a religious faith and religiously-informed ethic is a constitutionally protected exercise and expression of one’s religious faith. The SCC recognized this in TWU v BCCT in finding that a student’s decision to attend TWU was a means of affirming and freely expressing their religious beliefs while associating with others to put them into practice. Law students have the right to adopt personal rules of conduct based on their religious beliefs, not just as individuals, but collectively within a religious community – including at an accredited religious university. They should not be punished or disadvantaged by the state for exercising that freedom, which is the effect of the Law Society’s Decision.
The denial of accreditation to TWU infringes both the section 2(a) and section 15 rights of TWU students and has broader implications for the fundamental freedoms of all lawyers and law students – Christian and otherwise – who hold and seek to publicly express religious views on issues such as sexuality and marriage. If the Law Society of Upper Canada, and the court in turn, holds it to be contrary to the public interest for a law faculty to support a religiously-informed view of marriage then, by the same logic any lawyer who rejects the state’s views on religious or ethical issues could likewise be penalized. Furthermore, if the decision of the Divisional Court is upheld, it could create a climate where legal professionals with ‘contrary views’ in the eyes of the LSUC and the state are afraid to speak out and risk being professionally sanctioned for doing so. CLF’s factum is available here.
Religious freedom is engaged
The Appellants argued that the LSUC failed, by deciding not to accredit TWU, to undertake the proper legal analysis under Doré. Early in the hearing, Justice Cronk put it to Mr. Staley that the application of the Doré analysis was implicit in the communication that took place amongst the benchers. Mr. Staley responded by clarifying that while they may have used the right “buzz words”, not a single bencher appeared to conduct a proper Doré analysis from start-to-finish, which requires asking first whether TWU’s right to religious freedom was infringed and second whether this infringement was minimally impairing. Instead, Mr. Staley submitted that the LSUC’s decision to address a binary question – to accredit or not to accredit – by its very nature excluded the possibility of an alternative solution that minimally impaired the Appellants’ rights.
The LSUC took the position on appeal that religious freedom rights were not engaged, or that if they were, only minimally so. They based this argument on the assertion that religious association for the purposes of education is not a religious obligation, but a religious preference. Mr. Staley countered this assertion by pointing out that the test for a freedom of religion claim, according to Amselem, is not whether a practice is “obligatory”, but whether it has a nexus with religion and is a sincerely held belief or chosen practice.
For many people of faith, including Christians, religion animates their worldview and desire to associate with others – including the desire to live, to study and to worship in a community of like-minded believers. Consequently, one’s faith is not something one forfeits simply by stepping into the public square. The Charter exists to prevent that from happening and in Saguenay, the court emphasized that a neutral public space “does not mean the homogenization of private players in that space.” As CLF submitted in its factum and oral arguments, the Law Society’s failure to recognize the comprehensive nature of the Appellants’ religion and its relevance to the study and practice of law demonstrates the need for a law school like Trinity Western’s.
Stepping into the public square
At one point during the Appeal, Justice Cronk asked the LSUC how TWU’s rights have been accommodated when its accreditation has been rejected outright. She later asked what was inherently offensive about exercising legitimately held beliefs both individually and collectively and coming together to learn in a communal environment. To this Mr. Pratt, counsel for the LSUC, said that nothing is wrong until TWU steps into the public square by asking for accreditation. He went on to say that to accommodate a law school made up of individuals who adhere to Trinity Western’s philosophy would undermine society’s efforts to advance the rights of individuals who identify as LGTBQ. Mr. Pratt expressed concern that accrediting TWU will compromise public confidence in the legal system and could set a bad precedent for future cases in which the LSUC might have to confront licensees who refuse to represent clients and/or hire employees of a different sexual orientation.
The LSUC maintained that an admission scheme based on merit alone is the only viable system for Ontario’s legal profession, and the only way to maintain such a system is to deny approval of a law school that would, in the LSUC’s view, “undoubtedly discriminate.” The LSUC argued that while religious freedom includes the right to believe and conduct oneself in accordance with a code of conduct, the requirement for students, especially those who would not otherwise adopt such views, to sign the Community Covenant goes “pretty far on the spectrum of religious freedom.” Of course, Trinity Western isn’t for everyone, which the Supreme Court of Canada recognized was acceptable in a free and democratic society in 2001. The Respondent, however, submitted that accredited law schools must befor everyone and that its Decision therefore satisfies the minimal impairment requirement in Doré.
Is this case premature?
At several points during the hearing, the question arose as to whether this case is premature. Justice Cronk questioned whether the uncertainty of future eligibility is limiting the freedom of students who wish to associate now – to which interveners such as CLF and JCCF responded in the affirmative. Mr. Daniel Santoro, counsel for the intervener JCCF, argued that if the LSUC is found to have completely dismissed the rights of a whole class of people, as the Appellant argues they have, then it’s not for the court to condone this and say that it can be dealt with later. Rather, it is the role of the court to make an order and ensure it is followed. The question then becomes whether the solution proposed by the Divisional Court is right and whether the appropriate balancing of rights took place.
Because the Charter is meant to serve as a shield - protecting individuals associated with TWU while binding the Law Society as a state actor - TWU argued that no balancing of rights took place in this decision because the Appellants (and those similarly impacted by the LSUC’s decision) are the only rights-holders concerned in the Charter analysis and their rights were not adequately protected.
The LSUC argued in favour of the decision of the Divisional Court, citing Dunsmuir, where the court said that if a reasonable decision is made, the court should refrain from interfering.
What could this mean for TWU and religious minorities?
CLF submitted that while the Law Society’s refusal to accredit TWU’s proposed law school affects individual students, it has even broader implications for the vitality of Trinity Western as a religious institution as a whole. Justice Campbell, who ruled in TWU’s favour in Nova Scotia, recognized that many Christians view law as a religious calling and Justice Rand in Roncarelli v Duplessis said that refusing a person to enter or continue a calling (including one that requires a license) should only occur when admission would be unquestionably incompatible with the statutory objectives. The Law Society, therefore, needs to have a good and lawful reason for preventing a TWU graduate from entering the bar, and according to the Supreme Court of Canada (per TWU 2001 and Roncarelli), it cannot be based on religious belief alone.
The court’s conclusion on these issues will have significant implications, not only for CLF and its members but for all religious minorities in the legal profession. The profession prides itself on promoting diversity but the opposite has occurred in this case. If the LSUC’s decision is upheld, an entire class of qualified and competent graduates will be rejected solely on the basis of their religious identification and association. As CLF argued in its factum, true diversity does not stifle the expression of diverse beliefs and opinions, which are essential for a healthy democracy.
 Trinity Western University v British Columbia College of Teachers, 2001 SCC 31 at para 32,  1 SCR 772 [BCCT].
 Syndicat Northcrest v Amselem, 2004 SCC 47 at paras 43,47,66, 2 SCR 551.
 Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 at para 74,  2 SCR 3.
 Dunsmuir v New Brunswick, 2008 SCC 9 at para 41, 1 SCR 190.
 Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25 at para 230.
 Roncarelli v Duplessis,  SCR 121 at 140, 16 DLR (2d) 689.
 BCCT, supra note 1 at para 34.
 There was no dispute in this appeal, or in the court below, that TWU grads would be ethical and competent lawyers.
At the Committee stage in the House, the Committee co-chair moved for certain amendments to Bill C-14 proposed by CLF to be adopted by the Committee. These were voted down.
Christian Legal Fellowship (CLF) is appearing before the British Columbia Court of Appeal this week in the matter of Trinity Western University v. Law Society of British Columbia. CLF Executive Director Derek Ross will present CLF's argument in support of the fundamental freedoms of law students and lawyers, including freedom of religion, association, expression, and equality.
The case arises from a dispute over Trinity Western University’s proposed law school, which would be the first private and faith-based law school in Canada. TWU’s law school was initially approved by the Federation of Law Societies of Canada, the BC Minister of Advanced Education, and the Law Society of British Columbia (LSBC). However, the LSBC’s initial decision was reversed in October 2014 following a referendum of its members. Opposition to the law school stems from TWU’s long-standing Community Covenant which, among other things, calls on students to refrain from sexual activity outside of marriage between one man and one woman.
TWU brought a court application challenging the LSBC’s decision, and the BC Supreme Court ruled in TWU’s favour. The court found that the LSBC “fettered its discretion”, thus violating procedural fairness, by allowing itself to be bound by a popular vote of LSBC members against approving TWU, rather than having the LSBC Benchers make that decision independently after due consideration of the relevant legal issues in play. CLF was also an intervener in that matter (see CLF’s written submissions here).
In CLF’s forthcoming arguments before the Court of Appeal, Mr. Ross will urge the court to consider the broader Charter implications that are at play in this case. Specifically, Mr. Ross will argue that it is contrary to the Charter, and the public interest, for a law society to reject a law student based on their identification with, and lawful expression of, ethical and/or religious beliefs. Furthermore, by characterizing TWU’s admissions policy as discriminatory and making this the basis for not approving its law school, the LSBC has called into question the extent to which current and future lawyers will be allowed to fully participate in their profession while remaining true to their religious identity.
The appeal will be held in Courtroom 60 of the Court of Appeal at 800 Hornby Street in Vancouver fromWednesday, June 1 through to Friday, June 3. CLF’s arguments are expected to be heard on Fridayafternoon. The proceedings are open to members of the public.
Next week, CLF will be before the Ontario Court of Appeal in companion litigation in that province. CLF, represented by Derek Ross, John Sikkema, and Peter Jervis, has filed written submissions and is expected to present its oral argument on Tuesday, June 8. CLF previously appeared before the Nova Scotia Court of Appeal in its hearing of the TWU case from April 6-8, represented by Deina Warren and Derek Ross (reported on here).
Kinsey Brockie, 3rd Year Law Student & Summer Intern at Christian Legal Fellowship
Before going to law school people often asked me what I wanted to do. Once I got into law school, people began asking what type of law I wanted to practice. I think people are asking the wrong questions. Instead of asking what I want to do, they need to be asking who I want to be. Not what type of law do I want to practice, but what kind of lawyer do I want to be. Attending the Christian Legal Institute helped affirm my answer to these questions.
Founded in 2009, the beginning of May brings with it the annual Christian Legal Institute in London, Ontario. This year, from May 2nd-6th, 25 students and young professionals from across the country came together to learn from leading Christian thinkers and legal practitioners about the importance of integrating our faith and professional calling. Throughout the week, students grappled with questions about worldview and foundations of law; challenges to fundamental freedoms; current issues in education; and the sanctity of life.
Having first attended the Institute as a delegate before going to law school in 2014, it was a privilege to be invited back to serve as a mentor to this year’s students. It was at the CLI that I was first introduced to Christian Legal Fellowship and the community of committed believers who make up its membership. Within my first week at the University of Ottawa, I was able to connect with our student chapter and later became one of its leaders. Being a part of CLF has been foundational in helping to shape my understanding of my legal career as a calling. The idea behind being “called to the bar” takes on a whole new meaning when we reflect on who is calling us and what He’s calling us to do.
We began the week looking at the moral foundations of the law and whether there is still a place for morality within the law. We discussed the idea that all law and all people are religious and everyone has a doctrine – even secularists.
Given the weight of the many topics discussed throughout the week, the upcoming Trinity Western Appeals being heard by courts across our country, and legislation regulating physician-assisted suicide, we turned to Jeremiah 29 to better understand the role we as Christians should play in our culture. We read the letter sent to the Israelites from the prophet Jeremiah after being taken captive by the Babylonians and living in a culture not dissimilar from our own – where boundaries are being blurred and long-established structures are disappearing. In his letter, Jeremiah sends a message from the Lord instructing the Israelites to build houses and settle down – to build a foundation in Babylon, to marry and start families, and to pray for peace and prosperity for the city to which they have been sent.
It is here, in the height ofchallenges to our faith,that we read God’s words about His plan to give us a hope and a future. We can be encouraged that not even Babylonian captivity could prevent the fulfillment of God’s promise for His people. Although we know that our time on earth is temporary, like the Israelites, we too need to be engaged with the culture that we live in – to multiply and to make disciples and to show up even when we feel like we are walking into the lion’s den. The only way to properly interact with culture is to create it, resting in the truth that the Lord will reconcile all things for His good.
Another theme we focused on throughout the week was serving God with our minds. As we invite the Holy Spirit to fill our minds we will be transformed by the renewal of our minds so that we are able to test and discern the will of God as we engage with the world around us.
The Christian Legal Institute provides training that is second to none. It is an incredible privilege to spend a week learning from respected theologians and leading legal minds. In addition to taking time out of their schedules to prepare a message and coming to speak to students, they are genuinely invested in our growth and ability to defend our faith in the public sphere. “Through the study of case law and theology, I emerge from the Institute with a greater understanding of the intersection of Christianity and the law, culture and society. I have been encouraged to test my worldview against God’s standard of truth” (2016 Delegate).
Upon reflection of their time at the Institute, delegates further remarked:
- “This time [at the Institute] of discipleship, edification, and fellowship has left my cup overflowing. On one hand it overflows with information…On the other hand it overflows with God’s love.”
- “I was introduced to an entirely different field [of law]…I found all the material refreshing and valuable… I now truly appreciate what Christian lawyers do.”
- “I appreciate how God uses both these ministries [CLF and the Ezra Institute for Contemporary Christianity] to train and equip young Christians to understand the importance of living a Godly lifestyle and integrating our faith with our careers and everything we do”
- “Thank you for an amazing time of spiritual edification and intellectual growth.”
- “[The CLI] is not your everyday conference – I would say it was divinely orchestrated by God to bring together individuals of the faith irrespective of our denominations and backgrounds.”
- “After completing my first year of law school, I needed to be reminded why the Lord has called me into this field… I left the CLI feeling challenged and cheered on to be a faithful witness wherever Christ calls me.”
Christian Legal Fellowship appeared before the Nova Scotia Court of Appeal as intervener in the case of TWU v. NSBS earlier this month. CLF was represented by lawyers Deina Warren and Derek Ross (pictured above) at the three-day hearing. CLF’s written submissions can be accessed here. Deina Warren shares her reflections on the hearing below.
For the heart of this people has become dull, and with their ears they scarcely hear, and they have closed their eyes (Acts 28:27)
Engaging with the anti-TWU arguments and positions, I can’t help but hear this verse echo in my mind. It seems obvious that TWU’s case is one of state actors substantially interfering with Charter protected religious beliefs. Yet in Nova Scotia, the Barristers’ Society believes it has done nothing to interfere with freedom of religion.
But thankfully, the NSBS does not have the last word, and the Nova Scotia Court of Appeal was fully engaged on all the live issues.
Simply observing two full days of an appeal hearing was an experience in itself. The five-judge panel sat quietly for the first half an hour; then the questions began. Clearly drawing on litigation experience from the past, the panel questioned with expertise and an intimate familiarity with the expansive record.
Facial expressions betrayed consternation, frustration, confusion, satisfaction, irritation, bewilderment, and understanding as arguments were made and questions were (sometimes) answered.
Questions like: what has changed since the TWU v B.C. College of Teachers decision in 2001 that would fundamentally alter the analysis and outcome for this case? What test did NSBS apply to TWU to determine that TWU unlawfully discriminated? Do Charter values expand jurisdiction to regulate?
Answers from the NSBS consistently returned to several themes. First, the public interest. In its view, the public interest required action against TWU because of its admissions policy. Regulators must ensure equal access to the legal profession which, the NSBS insisted, means ensuring equal access to law schools.
NSBS’ second theme was unlawful discrimination. Although it was unclear which legal test was applied to come to the conclusion TWU unlawfully discriminates, in the end it didn’t really matter because the NSBS claimed it retained discretion to determine how, when and pursuant to what laws or principles a school “unlawfully discriminates”.
The third theme was NSBS’ view that its actions caused minimal (if any) impairment of religious freedom. You can have any religiously based education you want, the NSBS argued, but that doesn’t mean the state will validate your education for the purpose of entry to the legal profession. The NSBS also contended that TWU could make signing its Community Covenant voluntary without affecting the practice, belief or conduct of any Evangelical Christian. TWU’s position was thus characterized as a request for the right to “control the conduct of others” who do not share its beliefs.
For our part, CLF took 3 simple positions in oral argument.
First, since TWU v BCCT in 2001, religious freedom has been repeatedly affirmed, even expanded, and has been specifically protected in the context of allegedly competing LGBT equality rights; the analysis in TWU v BCCT is still relevant and applicable.
Second, the NSBS imposes on individual students a significant burden for associating with and/or personally holding to religious beliefs as expressed in the Covenant; these students will be put to a different test for bar admission, but what the components of that test will be remains a mystery. The NSBS accepted that TWU will be academically qualified and competent and that there is no evidence to suggest that they will discriminate in practice.
Third, the NSBS’ actions begs the question of whether there is a fence around its jurisdiction at all. How far back or out can a regulator reach in the name of the “public interest”? At what point does the “process” of becoming a lawyer begin? Can a student be denied admission to the bar based on her studying as an undergraduate at TWU, or at an international law school with similar policies? Where does this leave lawyers, judges, and law professors who hold beliefs similar to those embodied in TWU’s Covenant and who currently work in Nova Scotia? Will these lawyers now be subject to additional scrutiny from NSBS to ensure that any past or current associations, religious beliefs or expression align with NSBS’s definition of the public interest?
As the SCC recognized in BCCT, if signing TWU’s Covenant is enough to justify rejecting one’s academic qualifications, the same might be said of membership in a church or, by extension, any religious association. In response to this argument, one of the judges asked if we were suggesting that, as a result of the decision, Catholic lawyers will need to “keep their heads down”. We affirmed that this is exactly one of our concerns.
Overall, it was an engaging hearing. The challenging questions from the bench demonstrated a depth of understanding of the issues at stake and the broader implications of the case, which should bring some measure of reassurance to those of us who eagerly await the decision.
Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), legalizes assisted suicide and euthanasia (AS/E) for competent adults who have a “grievous and irremediable medical condition” and whose deaths are “reasonably foreseeable”. The following is a brief explanation and analysis of the bill.
Purposes in the preamble
In its preamble, the bill “recognizes the autonomy of persons … who wish to seek medical assistance in dying” and notes that it is “important to affirm the inherent and equal value of every person’s life and to avoid encouraging negative perceptions of the quality of life of persons who are elderly, ill or disabled.”
It is perhaps the central conceit of legalized AS/E that we as a society can put some people to death upon request, and even call it health care, without encouraging negative perceptions of those who press on with their debilitating or incurable illness, or without signalling that some lives have less “value” – itself a subjective, relativizing term – than others. This is why CLF has repeatedly stressed the ethical principle that every life is equally inviolable (see, for example, our Supreme Court factum in Carter).
Nevertheless, it is encouraging to find this kind of language in the bill. If and when this law is challenged, perhaps for not allowing AS/E for minors or requiring that a person be in an advanced state of irreversible decline in capacity, it is this kind of language that may help the bill to withstand judicial review. Such language will signal to courts that Parliament considered the long term societal effects of legalizing AS/E and balanced these against autonomy claims. As the Supreme Court said in Carter, “physician-assisted death involves complex issues of social policy and a number of competing societal values” and “a ‘complex regulatory response’ to a social ill will garner a high degree of deference.”
In the same vein, the bill also states in its preamble: “vulnerable persons must be protected from being induced, in moments of weakness, to end their lives”; and, “suicide is a significant public health issue that can have lasting and harmful effects on individuals, families and communities”.
Objectives such as these – preventing negative perceptions of the quality of life of the sick and elderly and the harm to families and communities that suicide causes – may contain the seeds for reconsidering Carter, the outcome of which depended on the contestible premise that the existing law was only concerned with protecting vulnerable persons from abuse. Bill C-14, however, does not try to overturn or even to push back on the Carter ruling – never mind the abundance of media criticism saying the bill is too restrictive. If anything, it broadens Carter. Let us examine some particulars.
Who may be exempt from criminal liability?
First: to whom the exceptions in the bill apply. This bill carves out exceptions not only for doctors, but for nurse practitioners, persons who assist a doctor or nurse practitioner to provide AS/E, pharmacists who dispense the lethal drugs, and anyonewho helps a person self-administer a prescribed lethal drug upon their request. Carter, however, dealt exclusively with physician-assisted death. As the trial judge in Cartersaid: “I do not accept that the term ‘physician-assisted’ should include the provision of assistance by persons other than physicians.” The Supreme Court used the same terminology without qualification.
The Carter ruling depended in large part on the finding that doctors have the requisite skill and knowledge to assess patient capacity, to detect undue influence or ambivalence, and to provide accurate diagnoses and prognoses. Absent legislation, Carter would create a common law exception to the criminal ban on assisting a person’s suicide only for physicians. Bill C-14 therefore expands Carter.
The most problematic aspect of this expansion is the exemption for anyone who helps a person self-administer the deadly drug. Once a person receives her poison prescription and brings it home with her, there can be no supervision of how it is used. A vulnerable person might be pressured or tricked into taking the drug once they have them in their home. Prosecuting suspected abuse will be extremely difficult as the Crown would have to prove beyond a reasonable doubt that the deceased person did not request to be given the drug. Moreover, a “reasonable but mistaken belief about any fact that is an element of the exemption” is a sufficient defence. This is no strict, scrupulously monitored safeguard.
Who is eligible to receive AS/E?
Second: the eligibility criteria for the recipient (victim) of AS/E. He must be at least 18, request AS/E voluntarily, give informed consent (not by advance directive), have a serious and incurable illness, disease or disability, be in an advanced state of irreversible decline in capability, suffer enduring physical or psychological suffering that is intolerable to him, and his natural death must be reasonably foreseeable.
Despite complaints among media commentators to the contrary, the eligibility criteria are fairly closely aligned with those contemplated by Carter. Of course, the Supreme Court was insistent that it would not and was not usurping Parliament’s role, so Carter should not be read as requiring or ruling out certain criteria in legislation. What we know from Carter is that a complete ban on assisted suicide was found to infringe on the right to life, liberty, and security of the person in the factual circumstances of the case, which did indeed involve a patient with a serious, incurable illness, in an advanced state of decline, whose natural death was foreseeable, and who was mentally capable at the time.
However, there is a serious lack of precision here. What does it mean that someone’s natural death must be “reasonably foreseeable”? Does it mean that her illness will, with reasonable medical certainty, cause her death? That is, must her condition be terminal? Within what time frame? They say the day you’re born is when you start to die, after all.
What procedural safeguards are required?
Third: procedural safeguards. Here, Carter itself has less to say. Rather, the Supreme Court was satisfied to find that a complete ban was not the least restrictive means of protecting vulnerable people because Parliament could, hypothetically, “very substantially minimize” the risks to vulnerable persons “through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.” How those limits should be monitored and enforced the Court does not say. That is up to the other branches of government.
The bill requires independent witnesses when a request for AS/E is made, requires assessment by a second, independent doctor or nurse practitioner, requires a physician to personally inform the pharmacist who fills a prescription of its intended use, and requires informing the patient that they may withdraw their request for AS/E at any time. The bill also requires doctors and nurse practitioners to report requests for AS/E in accordance with regulations to be made by the Minister of Health.
The bill says the Minister may require information related to “requests for and the provision of medical assistance in dying” to be reported “at various stages”. Given that prior authorization from Department of Health official is not required, however, the purpose of the reporting seems to be to allow the government to monitor the provision of “medical assistance in dying” at a macro level, not to ensure compliance with the law in individual cases before AS/E occurs.
What about freedom of conscience?
In its preamble, the bill says that the Government of Canada has “committed to develop non-legislative measures that would support the improvement of a full range of options for end-of-life care [and] respect the personal convictions of health care providers”. On its face, the bill permits physicians, nurse practitioners, their assistants, and pharmacists to provide “medical aid in dying” but does not require them to do so. However, it is easy to imagine, for example, a situation in which an employer expects a nurse to assist a physician in providing this “service” – even if she objects. This bill offers no explicit protection.
The bill also says in its preamble that “the Government of Canada has committed to uphold the principles set out in the Canada Health Act – public administration, comprehensiveness, universality, portability and accessibility – with respect to medical assistance in dying”. This signals that the Government intends to ensure that AS/E is provided as public health care in all provinces, with the possibility that a province would see a reduction in federal funding for failing to provide it. This could result in greater pressure on health care workers to participate.
Legislative protections for freedom of conscience raises jurisdictional questions. Please see our submission (at page 14) to the federal External Panel on Options for a Legislative Response to Carter, here, and our submission to the Government of Ontario, here (at page 7), for ways that both levels of government could protect health care workers’ freedom of conscience.
Minors, the Mentally Ill, and Advance Requests
Bill C-14 does not legalize AS/E for minors or for persons whose sole underlying medical condition is a mental illness. It also does not allow for AS/E by advanced directive. However, the bill commits the Government of Canada to “explore other situations – each having unique implications – in which a person may seek access to medical assistance in dying, namely situations giving rise to requests by mature minors, advance requests and requests where mental illness is the sole underlying medical condition”. Carter does not oblige the government do so (in fact, the SCC stated that "euthanasia for minors or persons with psychiatric disorder was outside the parameters of the decision, para. 111). Nor, strictly speaking, does this part of the bill’s preamble legally oblige the government to do anything, but if it is an accurate reflection of the current government’s intentions, it is cause for concern.