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.
CLF to Support Fundamental Freedoms before Courts of Appeal in BC, Ontario
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).
Exploring Our Calling at the Christian Legal Institute
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.”
Lawyers of Faith Shouldn't Be Forced to "Keep Their Heads Down"
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's Contradictions Cause for Concern and Hope
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.
National Student Conference a "Tremendously Challenging and Enriching Experience"
Justice Peter Lauwers addresses the 2016 CLF National Student Conference.
Sarah Faber is a first-year law student at Queen's and a member of the Queen’s chapter of the Christian Legal Fellowship. Sarah was also a member of the Conference Planning Committee, along with Queen's Students Jacqueline Chan, Jordan Moss, and Jacob Mantle.
From March 10th to 13th, Kingston Ontario was home to an event unlike anything that has happened there in a very long time, when Queen’s University hosted the CLF National Student Conference. Christian legal professionals and students from across the country gathered at the Faculty of Law for an intensive two-day conference under the general theme of Seeking Wisdom.
Christian law students are constantly bombarded with information and argument, and it can be challenging to see the wisdom of God through it all. Over the weekend we took a break from the overload of knowledge, and spent a few days looking for wisdom together as a Christian legal community.
The conference program balanced theoretical and practical sessions, featuring an amazing array of speakers who shared not only their substantive work, but also their personal experiences and insight about what it means to walk like a Christian lawyer. The schedule offered many opportunities for students to ask questions, get to know each other, and discuss the common issues and concerns that we are all working through together. Many of the speakers stayed after their sessions to participate in the ongoing dialogue and fellowship. Their genuine concern and support for the next generation of Christian lawyers was part of what made this conference so special. Some of the wisdom that was shared in the space between sessions challenged and encouraged just as much as the formal presentations themselves. Each day was framed with times of prayer and worship, which not only solidified our sense of fellowship, but made this a unique weekend of heart, soul, and mind growth.
On Friday afternoon, Justice Lauwers of the Ontario Court of Appeal gave a keynote address on “Religious Freedom and the Ambiguities of Liberal Pluralism”, where he discussed the role of religion in a liberal democracy, and the present condition of religious freedom in Canada. Justice Lauwers presented a refreshingly balanced and insightful perspective on how lawyers need to be thinking about their role in Canada. He emphasized that religious freedom is essential for a truly free society, and challenged the audience to pursue an accommodative approach to pluralism not only for the sake of religious minorities, but for our country as a whole. On Saturday, Rev. Majed El Shafie presented his powerful personal testimony and told us about his ongoing work as a religious freedom activist. His story was a gripping reminder of the desperate need for international change, and an inspiring account of what it means to truly live by faith. Hearing about what happens when religious freedom breaks down powerfully reinforced Justice Lauwers’ message that religious freedom in Canada is something that we all have a responsibility to protect. Saturday afternoon was spent discussing current cases and issues that CLF is working on, and how they affect the status of religion in Canada.
Saturday ended with a banquet for students, local CLF members, and speakers. After dinner, the conference was addressed by Justice Kenneth Pedlar of the Superior Court of Justice of Ontario, on the theme “Who Are These Christian Lawyers, and Why Do They Walk This Way?”. Justice Pedlar spoke to us about the great work that Christian lawyers are doing all over the world, and how the essence of Christian lawyering is not issues, opinions, or words, but identity. Michael Kim, a conference attendee from Osgoode Hall, described Justice Pedlar’s message in a recent Facebook post: “The speaker's life journey had been evidently marked by that one question: What does the Lord require of me? His zeal and resilience to look after the most vulnerable went beyond his profession and career. It was not momentary or temporary. That was a way of life. That was his life.”
For a first-year law student like myself, this conference was a tremendously challenging and enriching experience. It was helpful and encouraging to discuss interactions of faith and life in the legal profession, and to hear a different perspective on some of the very issues that I have been encountering in my law school classes. More importantly, I came away from the conference feeling that I was part of a community of students, lawyers, and judges who were committed to doing justly, loving mercy, and walking a different way.
Notes from Conference Attendees
"My time at the National Law Student Conference has helped to redefine my understanding of a 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.
In his keynote address, Justice Pedlar asked what people would find if they were looking for proof beyond a reasonable doubt that we are Christians. He reminded us that once we label ourselves as Christians, people are watching. What are the cornerstones of our spiritual lives and are they visible to others? Upon what have we built our foundation? Surely it is not on good grades, interviews invited to, jobs secured, positions appointed to, awards won… but on something far more certain and infinitely more secure. Isaiah 33:5-6, the theme verse for the weekend, tells us that the Lord alone is exalted and dwells on high. He will be the sure foundation of our time – a rich store of salvation, wisdom, and knowledge. This is the foundation I want to stand on!
To those who prayed for this weekend; to those who came to teach; to those who organized; to those who contributed financially; and to everyone who participated… Thank you. Thank you. Thank you!"
- Kinsey Brockie
"This conference radically shifted my focus. I walk away now with a strong desire to join other believers within the legal profession to not only be a point of light directed at bringing justice, but also at bringing honour and glory to the Lord Jesus Christ. Moreover, I sense an equally strong conviction to submit my future practice to the Father’s will, to treat it not strictly as a career but also as a mission field to reach the lost and edify fellow believers.
This conference introduced me to an entire network of resources, mentors, and insights into problems that require great discernment and wisdom in their treatment and analysis. I have gleaned new critical approaches to the difficult and controversial topics covered in these cases and come away from this conference better equipped to take a God-fearing position in the debates surrounding them.
The discussions demonstrated to me that God is at work in the minds and hearts of these Christian lawyers. Your members radiate Christ’s light: through their love and pursuit of justice, through their animation in debates and discussions, and through their commitment to prayer.
I have been reminded and encouraged to stand firm in my faith, to be courageous in the face of trials and to seek in all things justice, righteousness, wisdom and knowledge, exalting the Lord in my daily walk with Him. I leave this conference emboldened in my faith and inspired to reach out to my colleagues with this newfound commitment to my vocation as a Christian lawyer: to be used for God’s holy purposes where I have been planted.
Thank you for your generous conference bursary as well as your overwhelming encouragement, kindness and prayers."
- Vivian Ellery
CLF Intervenes in Support of Religious Freedom and Diversity in TWU Litigation
Litigation over Trinity Western University’s proposed law school continues at the Court of Appeal levels in Ontario, Nova Scotia, and B.C. CLF has been granted standing to assist the courts in Ontario and Nova Scotia as an intervener, and has applied to intervene in B.C. Last week, CLF filed a 10-page factum with the Ontario Court of Appeal and a 25-page factum with the Nova Scotia Court of Appeal.
CLF defended the freedom of religious law students and lawyers to express, exercise, and associate on the basis of their faith. This freedom includes the right to attend an academically accredited religious law school where students agree to abide by a Christian ethic.
In Ontario, the Law Society of Upper Canada (LSUC) argued that denying accreditation to TWU’s law school did not infringe on anyone’s Charter rights or freedoms. LSUC presented the study of law as a “ventur[ing] into the public domain” where, it contends, religious freedom diminishes. LSUC has not precluded Christians from studying law together in a Christian community, it argues; rather, it simply has not conferred the “benefit” of accreditation on TWU’s program because TWU’s Covenant is allegedly discriminatory. The Court below described the loss resulting from refusal to grant accreditation as an economic loss.
CLF countered such arguments by explaining how the refusal to accredit a Christian university interferes with living out the Christian faith. For those who desire to attend TWU because no other law school or campus community can similarly prepare them to practice law in accordance with their faith, they are faced with a difficult choice. Either they forego a TWU education because the cost of earning an unaccredited degree is too great or they attend TWU but forego the ability to actually practice law unless they earn further credentials elsewhere.
CLF believes that studying law in community with other Christians who are committed to submitting their thoughts and lives to God’s Word is an expression of one’s faith. We also believe the practice of law is a calling from God and a unique opportunity for ministry. Christians are called to seek justice: “learn to do good; seek justice, correct oppression; bring justice to the fatherless, plead the widow’s cause.” A Christian’s faith governs every aspect of his life. The integration of law with faith is essential for the Christian to “seek justice”. The study of law, then, is neither a “peripheral” matter, nor a “secular pursuit”. It is one of the most direct ways in which a Christian can fulfill her biblical calling to seek justice. The loss is not, therefore, economic, but religious. The freedom to live out one’s religious calling—and to help others do the same—is impeded by LSUC’s decision.
If there were any violations of religious freedom, religious expression, freedom of association, or religious equality, LSUC argued that such violations were justified because its statutory duty to act “in the public interest” required it to deny accreditation to TWU.
In response, CLF argued, first, that LSUC’s duty to protect the public interest is limited, in the statutory context, to ensuring its licensees meet appropriate standards of learning, competence, and conduct. Second, CLF argued that if LSUC’s jurisdiction to protect the public interest were as broad as LSUC argued, and informed by “Charter values” and “human rights legislation values”, that the public interest is not limited to the “human rights value” of LGBT equality, but includes religious equality, religious diversity, institutional and associational diversity, diversity of opinion, free expression, and so on.
In light of all relevant human rights considerations, and the fact that Ontario’s Human Rights Code provides specific protections for religious institutions, including schools, it cannot be in the public interest to refuse to accredit a school on the basis that it holds to a religiously-informed understanding of marriage and morality.
We invite you to read our Ontario factum, here, and share your thoughts with us.
CLF made similar arguments in Nova Scotia. We also invite you to read our Nova Scotia factum, here. Since we had more space, we were able to elaborate significantly on some of the arguments made in Ontario. The Nova Scotia factum contains more detailed arguments about the nature of the freedoms protected in sections 2(a),(b),&(d) of the Charter, including the fact that they protect the freedom to hold communal ethical commitments. It also explains how the Nova Scotia Barristers’ Society (NSBS) effectively requires TWU to comply with the Charter, though TWU is not subject to the Charter, while NSBS, which is subject to the Charter, clearly violates it.
CLF further warned against equating the “public interest” with public opinion about marriage, and argued that the fear of being misperceived by the public as endorsing TWU’s beliefs about the nature and purpose of marriage was no basis for the NSBS’s decision. Finally, our Nova Scotia factum also has a more detailed discussion of the duty of the state to be neutral towards religious beliefs.
CLF is grateful for the help of its members Deina Warren and Philip Fourie, and Peter Jervis, who worked with CLF’s in-house legal team (Derek Ross and John Sikkema) to complete the Nova Scotia and Ontario factum, respectively.
CLF's UBC Chapter Hosts Student Conference
CLF lawyers and law students at the UBC CLSA Student Conference, January 31, 2016.
The UBC Christian Law Students’ Association hosted their second annual Christian Law Students’ Conference on January 30th, 2016. In addition to a time of worship, devotional, prayer, and fellowship over breakfast, there was a panel on stories. Seven lawyers, ranging from an articling student to a semi-retired lawyer, and coming from many areas of practice, took part in the panel and spoke about their journey in law and how God had worked through the highs and lows.
The conference was highly encouraging to all the thirty Christian law students and lawyers who attended. We would like to thank CLF for helping to make it possible!
-Tabitha Ewert, 2L & Tammi Hua 3L
The best part about the CLSA conference for me was being able to talk to lawyers who are both joyful and openly excited to use their work to glorify God. It entrenched for me that working in law is not just about helping God's children achieve justice, but that God is also using our vocation, its responsibilities and its challenges, to help us be the best versions of ourselves.
-Czarina Pacaide, 2L
I was encouraged by the conference- it's great to get together with Christian lawyers and students and to hear their stories of how they are growing in faith and living it out in their profession.
-Peter Stauffer, 2L
I found the Conference to be both encouraging to my faith and encouraging in my early journey into the legal profession. Being able to see from, and hear of, the struggles and joys of Christian lawyers is always uplifting; but especially getting the opportunity to hear their personal faith journeys in the legal profession was a great perspective to witness. It opened my eyes to the variety that each individual has in the practice of law, and the various different ways in which one can serve God in the legal profession. As a whole, this Conference encouraged me to continue to ask God for His will in my own individual life, and to not simply copy other people's journeys in the legal profession. It reminded me that he has an individual purpose for me in this vocation, and that I need to continually rely on and trust in Him to reveal that to me day by day.
-Rhys Volkenant, 1L
CLF's National Law Student Conference is also happening March 10-13, at Queen's University in Kingston - for more information, visit our Student Conference website!
Parliament Should Look at the Big Picture on Euthanasia
Cristian Legal Fellowship has submitted a written brief to the Parliamentary Special Joint Committee on Physician-Assisted Dying (the “Committee”). CLF’s brief was filed in order to provide clarification on a number of legal points, to outline key concerns surrounding euthanasia and assisted suicide, and to comment on Parliament's responsibility.
The Committee has been hearing from witnesses for the past two weeks. The Committee was appointed to review the Report of the External Panel on Options for a Legislative Response to Carter and other recent relevant consultations and studies, to consult with Canadians, experts and stakeholders, and to make recommendations on the framework for federal legislation that respects the Constitution, the Charter, and the priorities of Canadians.
The Committee’s deliberations have so far been focused primarily on how to make sense of and to implement the Supreme Court’s declaration in Carter that sections 14 and 241(b) of the Criminal Code are “void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”
The problem with the approach to responding to Carter that has predominated so far is two-fold:
First, it treats the Carter decision as dictating the fundamental requirements of any future law on the matter of assisted suicide and euthanasia, whereas the Court clearly stated its intent to avoid usurping Parliament’s role in crafting a remedy.
Second, it treats the Court’s “declaration” (above) as a free-standing statement of a newfound constitutional right—the supposed right of any and all competent, consenting adults with subjectively “grievous and irremediable” conditions to be killed by a physician or to have a physician assist them in committing suicide—which it is not.
In a telling exchange, the Chair of the Committee, Robert Oliphant, asked Dr. Gaind of the Canadian Psychiatric Association what should be considered “irremediable” when it comes to mental illness:
Dr. Gaind: “I don’t know if that’s a question for the [medical] profession to answer or for society to answer…[E]ven with patients with cancer, you can anticipate what the outcome may be, but you don’t know one-hundred percent for sure in many cases. So at what threshold do we say something is completely irremediable or not?”
Mr. Oliphant: “That’s what we’re asking you.”
Dr. Gaind is right. Answering such questions is Parliament’s responsibility, which represents society. However, the starting point for Parliament’s deliberations should not be defining “grievous and irremediable”. Rather, it should be answering such questions as: Why have a law governing assisted suicide and euthanasia at all? What objectives should a new law be designed to achieve? Not only are these good questions to ask at the outside as a matter of good policy making, but the objectives the law serves play a crucial role in determining the law’s constitutionality if the law is subject to a constitutional challenge.
In CLF’s written brief to the Committee, we elaborate on the points made above. We also explain how the scope of Carter has been exaggerated and how misunderstanding Carter creates a risk of foregoing the most important legislative objectives or the most effective means to achieve those objectives out of the mistaken belief that Carter precludes them.
CLF Submissions Well-Reflected in External Panel's Report on PAD
CLF's Associate Counsel John Sikkema, left, and Executive Director Derek Ross, right, after completing their submissions to the External Panel on November 3, 2015.
Earlier this week, the government released the Final Report of the External Panel on Options for a Legislative Response to Carter v. Canada. As previously reported, Christian Legal Fellowship ("CLF") provided, by invitation, both written and oral submissions to the Panel in 2015. CLF's written submissions are available here.
The Panel was appointed by the Federal government in the spring of 2015 and its original mandate was to provide recommendations for a legislative response to Carter. Following the election, however, its mandate was changed by the new government to simply reporting on its consultations with stakeholders.
CLF’s submissions are succinctly but well reflected in the Report at several points. CLF’s concerns surrounding the legalization of assisted suicide and euthanasia are apparent in the Report, although our explanation of how Parliament could continue to prohibit it even after Carter is not set out.
While expressing opposition, CLF’s legal team also decided to weigh in on the need for safeguards if the government does decide to make assisted suicide legal in certain circumstances. On the issue of capacity assessment, for example, the Report (at page 65) quotes Derek Ross for his point, made during oral submissions, that “if lawyers, who are versed in the law and are purported to be experts in a lot of the legal tests related to this issue, [are] not able to detect undue influence in the context of drafting wills, where the stakes are much lower, ... there’s a deep concern ... that physicians will not be able to make that assessment for patients.”
Since capacity assessment has both medical and legal dimensions, CLF, along with other groups, called for judicial oversight, a point also captured in the Report. The Panel made specific reference to CLF’s submission that “because physicians could face murder charges, they should have a court’s authorization as a form of legal protection” (page 94).
The Report also addressed the question of how mental illness might fit within an assisted dying framework. The Panel heard the argument that “even if a person’s mental illness rendered them legally incompetent, that incompetence should not disentitle individuals who otherwise meet the Carter eligibility criteria from accessing physician-assisted dying” (page 60). However, the Panel also reported (at page 60) that CLF and others countered this argument. In fact, as CLF highlighted to the Panel, the Supreme Court in Carter explicitly stated that “euthanasia for…persons with psychiatric disorders” was outside of the scope of its reasons (para. 111), and the trial judge also precluded assisted suicide for those who are clinically depressed (para. 1388).
In addition, the Panel reported that CLF, along with a long list of other groups, called for equal access to quality palliative care across Canada (page 121). A list of other key points from CLF’s oral submissions to the Panel is included at page 32 of Annex E to the Report.
The Panel concluded (page 132):
An important goal in establishing a physician-assisted death framework in Canada should be moving toward consensus. There are divergent views on many aspects of physician-assisted dying, but there are also areas of growing consensus, including a recognition of the need for carefully considered safeguards, oversight and a strengthened palliative care framework to be developed in parallel with one that provides access to physician-assisted dying in accordance with the Carter decision. Whatever system is put in place should be rigorously researched and evaluated periodically to foster improvements, if necessary.
CLF is grateful for the opportunity to participate in this process. The Panel’s Final Report is now being considered by The Special Joint Committee on Physician-Assisted Dying, a Parliamentary Committee.
CLF Attends Ontario's Consultation on "Physician-Assisted Dying"
John Sikkema, CLF Associate Counsel
Last night, I participated in the government of Ontario’s public consultation on physician-assisted dying in London on behalf of CLF.
The consultation, which took the form of a “town hall” meeting, began with a “context setting” presentation by a representative from the Ministry of Health. “As we talk about the kind of death we want,” the presenter said, attempting paradox, “we can think about the kind of life we want to live.”
The presenter briefly reviewed the Carter decision and the Provincial-Territorial Advisory Group’s Report on the issue. He mentioned a few of the Report’s 43 recommendations, including that “physician assisted dying” (“PAD”) be publicly funded, include the choice of assisted suicide or euthanasia, and have no mandatory waiting period. After recapping what the Ontario government has been doing—online surveys, town halls, receiving letters, and internal legal and policy research—the presenter from the Ministry of Health turned over the podium to Ipsos Reid. The research firm conducted a live polling and discussion session on the following questions:
1) Would you consider receiving PAD?
2) Who should carry out the act that causes death—the physician, the patient, either, or other?
3) Where or in what facilities should PAD take place?
4) How should the request should be made—in writing, orally, or both?
5) Would you lose trust in your physician if he or she participated in PAD or refused to participate in PAD, or would it have no effect on your trust in your doctor?
There were roughly 165 live votes on every question. In between each question, attendees discussed, for about 15 minutes, both the main polling questions and related questions. The room was divided into five groups, each with its own moderator.
One available voting option for every question was to respond that PAD is wrong under all circumstances. There were questions from the audience as to why this was an option at all, given that the Supreme Court had created a “right” to PAD. The moderator explained that they did not have that response available at their first town hall, and many attendees insisted that it should be a possible response. One person from the audience pointed out that Parliament could still make PAD illegal and expressed disagreement with the Carter decision.
To the first question, 51 responded that PAD was wrong under all circumstances, while around 80 said that they would be either very likely or somewhat likely to consider it (the remainder being spread between “not likely”, “unsure”, and “prefer not to answer”). When the same question was asked at the end of the evening, 60 people responded that PAD was wrong under all circumstances, though the distribution overall was similar. One audience member encouraged the researchers to not discount the slight shift towards opposing PAD, saying he has never put as much thought into an online survey as he has put into the survey conducted in the course of this evening of discussion with fellow citizens.
For each question in between, the number of people selecting the “PAD is wrong” response varied, as other response options seemed more germane to the question, while conveying a similar sentiment. For example, on the question about losing trust in your physician, 31 people responded that they would lose trust in their physician if he or she participated in PAD, 10 responded they would lose trust if their physician would not participate, 73 responded that it made no difference, and 30 responded that PAD is wrong under all circumstances.
On the question of who should perform the act that causes death, only 5 people voted that the patient should do it, whereas 15 selected “physician”, and 73 selected “either” (around 45 selected the “PAD is wrong” response). Following that question, I explained that, while physician participation in either assisted suicide or euthanasia signals medical approval of the decision to end one’s life, statistics show that where the choice is available, more people choose euthanasia, which may result in more “physician-assisted dying” overall than not making the latter an option. Euthanasia enables a person to be passive while a physician kills them. This is perhaps why the trial judge in Carter said that Ms. Taylor must take the lethal drug herself, unless she was completely physically incapable of doing so. Judging by the reaction to what I said, it seemed many people had not fully understood the significance of the question.
Toward the close of the evening, a young doctor told the audience she had voted “PAD is wrong” for every question, explaining that she went into medicine to care for people, not to kill them. Another attendee said he had lung disease and that it causes him great pain, but applauded the young doctor and said there should be more like her. Others told stories of people they knew who had suffered terribly and only wanted relief. Others told stories of elder abuse and warned about the risks of undue influence. Others told stories of people who wanted to die, but whose minds were changed when people came alongside them to care for them. The level of thoughtful engagement on the issues was encouraging.
SCC Grants Four-Month Extension for Assisted Suicide Law, Exemptions for Quebec and Individuals
Yesterday, the Supreme Court of Canada further suspended its Carter judgement for four months, reflecting the length of the interruption of the work of Parliament caused by the 2015 election. All nine judges agreed on the extension after hearing arguments on a motion earlier this week. CLF intervened in that motion.
The Court was split 5 to 4 on the other issues, namely (1) whether Quebec’s “medical aid in dying” law should be exempt from the continued application of the criminal provisions in Question and (2) whether individual exemptions should be available across the country through application to a judge.
To both exemptions, the majority said “yes” and the minority said “no”.
Exemption granted for Quebec’s “medical aid in dying” law
Quebec argued the exemption was needed to clarify the legal position in Quebec, given that its law permits “aid in dying” while the criminal law does not, and to avoid the chilling effect of the threat of possible criminal law violations. “In view of this, and having regard to the fact that the Attorneys General do not oppose”, the majority granted the exemption. For now at least, Quebec’s Act Respecting End-of-Life Care (ARELC) governs, but the majority noted that its ruling “should not be taken as expressing any view as to the validity of [Quebec’s law].”
John Sikkema, CLF’s Associate Counsel, who appeared for CLF at the motion, comments: “There is no precedent cited or explanation given for why clarifying the state of the law in a particular province or the supposed need to avoid the ‘chilling effect’ of the threat of committing criminal activity justifies exempting a province from criminal prohibitions that continue to apply in the rest of the country.”
The minority would not have exempted Quebec. In their view, the exemption would neither add to nor take away from “whatever clarity existed in the province of Quebec when the ARELC came into force.” The minority also cites the fact that the Minister of Justice in Quebec has issued a directive to the Director of Criminal and Penal Prosecutions not to prosecute any physician who follows the ARELC.
Individuals throughout Canada may apply to superior court for exemptions
The majority also granted an option for individuals to apply to a superior court for authorization to receive physician-assisted suicide during the four-month extension. Dissenting on this point, the minority highlights that in Carter (2015), the Court held unanimously that such a mechanism for individual exemptions would "create uncertainty, undermine the rule of law, and usurp Parliament's role. Complex regulatory regimes are better created by Parliament than by the courts." (para 125).
CLF Executive Director Derek Ross comments: “Less than a year ago, a ‘complex regulatory regime’ was considered necessary to minimize error and abuse and the suspension was given to afford Parliament time to create one. Today, a narrow majority of the Justices are prepared to permit assisted suicide in the absence of such a regime, and without clear guidance to assist lower courts in deciding individual exemption applications.”
The majority limited the availability of this remedy to applicants who fall within the scope of the declaration set out in paragraph 127 of Carter. As Gerald Chipeur, Q.C., who represented CLF in Carter, explains, eligibility for court-approved assisted-suicide will be limited: "Applicants will need to demonstrate that they are in a position similar to the factual circumstances in Carter, which involved an adult patient with advanced ALS, a physically debilitating and ultimately fatal disease. Based on the limited scope of the court's declaration, children, the non-terminally ill, and those suffering only from psychological (and not physical) illness would not qualify.”
CLF submissions reflected in minority judgment
CLF intervened at the motion, arguing that this matter involves serious questions of public morality and core societal values, which require careful review and clarification in the criminal law. Those arguments were reflected in the closing words of the minority's judgment:
"[We do not] underestimate the complexity of the issues that surround the fundamental question of when it should be lawful to commit acts that would otherwise constitute criminal conduct. The complexity results not only from the profound moral and ethical dimensions of the question, but also from the overlapping federal and provincial legislative competence in relation to it. The Court unanimously held in its judgment on the merits that these are matters most appropriately addressed by the legislative process. We remain of that view."
CLF Responds to Draft Policies on "Physician-Assisted Dying"
Derek Ross and John Sikkema
Across Canada, Physicians’ Colleges are grappling with the implications of the Carter judgment for their members and for their mandate to regulate the medical profession. The Supreme Court said that what follows its judgment “is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures” (para 132). However, the judgment as a whole clearly anticipates a legislative response from Parliament before assisted suicide or euthanasia may be provided at all.
Waiting for Parliament
Parliament has not yet legislated on this matter and Carter is due to come into effect on February 6, or six months later if the Attorney General’s request for a further suspension of the ruling is granted by the Supreme Court. Consequently, certain physicians’ Colleges apparently consider it necessary to create policies or guidelines on this matter.
The problem CLF has identified with such policies, however, is that they attempt to instruct physicians on whether or not and how to participate in an activity that remains criminal in all but the limited circumstances that fit within Carter. The Supreme Court did not clearly delineate the boundary between criminal and non-criminal assisted suicide and euthanasia or set out the necessary procedural safeguards, nor did they intend to, but left that up to Parliament. It was, after all, criminal law provisions that were in issue and the Court reaffirmed Parliament’s criminal jurisdiction over this matter. So while there may be some role for the Colleges to play, that role is not instructing physicians on how to comply with the limited judicial invalidation of certain criminal provisions.
Misreading Carter
In previous communications, we explained how the Colleges of Saskatchewan and Manitoba misapply Carter in their policies. Our submissions to those Colleges are available (here and here). This month, CLF has also made submissions to the Colleges of New Brunswick (here) and Ontario (here). We identified and explained similar issues to those Colleges.
One important point of explanation is that the declaration of invalidity in Carter was strictly and expressly limited in scope to the factual circumstances of Ms. Taylor, the plaintiff in the case who had ALS, a debilitating and fatal illness. For a concise explanation of the limited scope of the declaration of invalidity in Carter, see “Misreading Carter”.
Yet the Colleges of both New Brunswick and Ontario communicate to physicians through their draft documents that psychological suffering alone is enough to qualify a person for assisted suicide or euthanasia. CLF explains in its submissions why this falls outside the parameters of the Carter ruling.
The Colleges can wait
The Supreme Court was clear that its judgment does not oblige physicians to provide “physician-assisted dying”. The Colleges, therefore, can wait. They are under no obligation to establish policies on this matter when the state of the criminal law is not yet clear. In fact, they would do well to discourage physicians from participating in order to avoid criminal or civil liability, at least until Parliament and the provincial legislatures have clarified these matters through “a carefully designed and monitored system of safeguards” as mandated in Carter (para. 27).
Physicians not obliged to provide assisted suicide
The SCC in Carter made it clear that nothing in its judgment “would compel physicians to provide assistance in dying” (para 132). A recent poll of Canadian physicians revealed that 63% would not consider providing medical aid in dying, with a further 8% undecided. As the court acknowledged in Carter, “a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief” (para 132). Nevertheless, the Ontario College’s Interim Guidance document requires physicians to participate in the form of effective referrals, regardless of their personal beliefs. CLF explains in its submissions that nothing in Carter requires this or creates any burden on physicians or the College to facilitate access to assisted suicide and euthanasia. Rather, as the Court said, Carter “simply renders the criminal prohibition invalid.”
As CLF has stated in 2014 submissions to the College, “Physicians do not practice medicine in a moral or ethical vacuum. To the contrary, a physician’s ethical framework does, and should, inform the care they recommend and provide.” We were pleased to learn that this sentiment was echoed in the Canadian Medical Associations’ recent submission to the CPSO, which stated:
“It is in fact in a patient’s best interests and in the public interest for physicians to act as moral agents, and not as technicians or service providers devoid of moral judgement…[M]edical regulators ought to be articulating obligations that encourage moral agency, instead of imposing a duty that is essentially punitive to those for whom it is intended and renders an impoverished understanding of conscience.”
The CMA has called on the CPSO to remove its “effective referral” requirement, as has CLF.
Closing Thoughts
A remarkable element of the response to Carter, both from physicians’ Colleges and the Provincial-Territorial Expert Advisory Group’s Report, is the effort to transform assisted suicide and euthanasia from a crime in 2015, to a publicly-funded, readily and equally accessible “health care service” in 2016. The provinces, physicians’ Colleges, and individual physicians supposedly all have a role to play in realizing the “right” to readily access “death with dignity”. But there is no such right. Carter simply held that the criminal provisions were inconsistent with section 7 of the Charter based on a particular interpretation of the objective of those provisions and a particular set of adjudicative facts. Invalidating a criminal prohibition against something is not the same as establishing a positive right to it. Indeed, section 7 of the Charter has never been interpreted as creating positive rights—the right to receive something from the state as opposed to the (negative) right to be free from state interference. Will Canada’s first “positive right” under section 7 be the “right to die”?
Quebec Court of Appeal Overturns Ruling on Bill 52
In D’Amico et Saba c Procureure général du Québec, the Court of Appeal of Quebec overturned the Superior Court’s finding that Quebec’s law is inoperative under the doctrine of paramountcy. The Court of Appeal reasoned that paramountcy only applies to resolve a conflict between a valid federal law and a valid provincial law, but the federal assisted suicide law violates the Charter.
CLF was granted intervener status in this constitutional challenge to Quebec's euthanasia legislation (Bill 52 - An Act Respecting End-of-Life Care). CLF raised the concerns of faith-based health care institutions and medical professionals about participating in euthanasia or assisted suicide. CLF also spoke to the issue of paramountcy, in support of similar arguments advanced by the parties challenging Quebec’s law (a physician and a woman with a disability) and (initially) by the Attorney General of Canada.
On December 1, 2015, the Superior Court of Quebec declared that portions of the Act purporting to authorize “medical aid in dying” were inoperative because they flagrantly contradict Criminal Codeprohibitions that remain in force. This is known as the doctrine of paramountcy.
The Attorney General of Quebec appealed. The appeal was heard by the Quebec Court of Appeal on December 18. Bob Reynolds, President of the Board of CLF, acted as counsel on the intervention. At the Court of Appeal hearing, Canada reversed its position on paramountcy and supported Quebec’s appeal.
At the Court of Appeal hearing, CLF defended the Superior Court’s judgement on both substantive and procedural grounds. CLF argued that the doctrine of paramountcy must apply in this case to resolve the obvious conflict between portions of Quebec’s law purporting to require “medical aid in dying” to be provided to qualifying persons and Criminal Code provisions which prohibit the same, and that such an outcome was in keeping with the public interest.
The Quebec Court of Appeal overturned the Superior Court’s finding that Quebec’s law is inoperative. The Court of Appeal stated that the court below was wrong on paramountcy. Its reasoning was that paramountcy only applies to resolve a conflict between a valid federal law and a valid provincial law, which is indeed true. But the Court of Appeal reasoned further that the federal law, though it remains in force until at least February 6, 2016 (and possibly longer if the extension requested by the federal government is granted, see intervention in Carter below), is not really “valid”, since it was declared invalid in Carter.
In the view of CLF’s in-house legal team, Derek Ross and John Sikkema, this decision is a problematic one, as they explain:
"In our respectful view, this decision confuses the issue of validity. The reason paramountcy is said to apply only where two valid laws are in place is because it takes two operative laws to have a conflict of laws. Often, in federalism disputes, it will be argued that one or both of the federal and provincial laws in question are ultra vires the enacting body. If one of the laws is ultra vires, it is no longer a law because there was no authority to enact it. There is then only one law, meaning there can be no conflict of laws.
The Quebec Court of Appeal takes the term “validity” as it appears in paramountcy jurisprudence and applies it to Criminal Code provisions that have been declared partially invalid under the Charter of Rights and Freedoms. However, the declaration of invalidity in Carter was suspended for a year. The criminal law provisions currently remain in force. The conflict with Quebec’s law is therefore real and obvious. The reason paramountcy does not apply in cases where one law is invalid is because it isn’t needed—the finding of invalidity or ultra vires eliminates any conflict. A declaration of ultra vires, unlike a declaration that a law violates the Charter, is never suspended but takes effect immediately, meaning the apparent conflict disappears immediately. That is plainly not the case here.
The Quebec Court of Appeal also says (at para. 37) that Quebec’s law fills the legal vacuum left byCarter. The ruling implies that the provinces can fill gaps in the criminal law resulting from a Charterruling, even while criminal law provisions still remain in force. It implies that physicians in Quebec can ignore the criminal prohibitions on assisted suicide and euthanasia because Quebec has legislated on the matter. In essence, it turns the doctrine of paramountcy on its head by making Quebec’s law paramount over federal laws that remain in force."
The Quebec Court of Appeal ruling can be found here (in French).
It is not yet known whether the parties will appeal. CLF will keep its members informed of any further developments.
LSBC's Rejection of TWU Overturned by BC Supreme Court
Yesterday (December 10, 2015), TWU succeeded in its case against the Law Society of British Columbia (LSBC). Justice Hinkson of the B.C. Supreme Court found that the LSBC decision to reject TWU’s proposed law school was both procedurally unfair and substantively incorrect.
Christian Legal Fellowship (CLF) intervened in the proceedings. CLF submitted that it is not contrary to the public interest for a prospective lawyer to study at a law school that adheres to lawful, if unfashionable, ethical beliefs. By characterizing TWU’s admissions policy as discriminatory and making that the basis for not approving its law school, CLF submitted, the LSBC overlooked TWU’s right as a religious educational institution to promote ethics consistent with its underlying beliefs and teachings in order to maintain its religious identity and ethos. CLF also defended the right of religious students to not be deprived of the opportunity to obtain a professional licence because of their religious beliefs or their association with those who hold and manifest such beliefs.
Justice Hinkson found that the LSBC’s statutory authority to consider the “public interest” is broader than the authority to set standards for competence, meaning the LSBC could take TWU’s Community Covenant into consideration in making its decision. The Divisional Court in Ontario held likewise, whereas Justice Campbell in Nova Scotia did not. While this conclusion would seem to open the door to substantive consideration of Charter issues, the case was ultimately decided on administrative law grounds.
This question of the LSBC’s jurisdiction was decided on a correctness standard, in keeping with TWU v BCCT (2001), but in contrast to the recent Divisional Court ruling in Ontario. The standard of review for determining whether the LSBC complied with its duty of procedural fairness was also correctness, and here the LSBC failed.
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. The LSBC also violated TWU’s right to procedural fairness by depriving it of a meaningful opportunity to present its case fully and fairly to those who had the jurisdiction to determine whether the JD degrees of the proposed law school‘s graduates would be recognized by the LSBC.
With respect to the constitutional freedoms implicated by the LSBC’s decision, Justice Hinkson commented, “I am not persuaded that the circumstances or the jurisprudence respecting human rights have so fundamentally shifted the parameters of the debate as to render the decision in TWU v. BCCT other than dispositive of many of the issues in this case.” This contrasts with the Divisional Court of Ontario’s finding that TWU v. BCCT was not binding. Justice Hinkson also disagreed with the Divisional Court of Ontario that TWU v. BCCT could be distinguished based on the facts.
Otherwise, however, the decision gave little attention to the substantive Charter rights and freedoms in issue. Justice Hinkson did at least assert that the LSBC is obligated to exercise its statutory discretion in accordance with the Charter, meaning it must conduct a proper balancing of statutory objectives andCharter implications must be conducted. While the outcome is favourable, there was not a declaration that such a balancing must necessarily result in a decision in TWU’s favour.
CLF expects the substantive Charter issues to be addressed in detail in the appeals in Ontario, Nova Scotia, and possibly B.C. if the LSBC appeals.
CLF Appears Before Federal Panel on Assisted Suicide
In just three months, the Supreme Court of Canada’s partial invalidation of the criminal prohibition on assisted suicide in Carter v Canada will take effect.
Christian Legal Fellowship (CLF) was an intervenor in Carter at all three levels of court (see CLF’s facta here), relying on the core legal (and for CLF, religiously-informed) principle of the inviolability of life. CLF advocated that the lives of all persons are equally valuable, despite the many inequalities (physical/mental ability, bodily health, etc.) that might exist, and that the state must guard the lives of all persons impartially, and not differentially value their lives.
Federal Response
Parliament has established an “External Panel on Options for a Legislative Response to Carter v. Canada”(the “Panel”). The Panel’s mandate is to consult with key stakeholders on issues that are fundamental to a federal legislative response to the Carter ruling and to provide a final report to the Ministers of Justice and Health.
CLF was invited by the Panel to engage in a direct consultation based on its interventions in Carter. CLF, represented by Executive Director Derek Ross and associate legal counsel John Sikkema, met with the Panel today in Toronto and made both oral and written submissions on a number of questions of law and ethics (written submissions available on CLF’s website).
CLF submitted that the broader ethical, moral, social, and cultural issues resulting from the legalization of physician-assisted suicide were not adequately addressed in Carter and need to be carefully examined before a new regime is introduced. CLF stressed that more time is needed for this vital process and encouraged the panel to recommend that Parliament request an extension of time to do so.
CLF also submitted that the Supreme Court of Canada (SCC) in Carter did not impose a value judgement that assisted suicide and euthanasia are good “services” for society that must therefore be funded and facilitated by the government. Rather, the SCC ruled that a blanket criminal prohibition was a broader than necessary means for achieving Parliament’s legislative objective—which the SCC interpreted as protecting vulnerable persons from being induced to commit suicide in a moment of weakness. CLF’s submission explained that it remains open to Parliament to re-enact a complete ban pursuant to the objective of maintaining the longstanding legal principle of the inviolability of life (an issue which was not addressed by the SCC in Carter), and detailed why a complete ban remains the best legislative option available.
Should Parliament choose not to (re)enact a complete ban, however, CLF submitted that Parliament retains jurisdiction over the “matter” of assisted suicide and must enact strict limits on this practice, along with comprehensive safeguards and oversight mechanisms, to protect the vulnerable in as much as this is possible. CLF also advocated for improved access to good palliative care for patients.
Finally, CLF advocated for the protection of physicians’ (and others’) freedom of religion and/or conscience by making it an offence to pressure a person to participate, directly or indirectly, in assisted suicide or euthanasia.
Provincial Response
CLF was also invited by a group established by provincial/territorial governments - the Canadian Provincial/Territorial Expert Advisory Group on Physician-Assisted Dying – to participate in a separate consultation by completing a detailed survey. The survey contained questions on a wide range of issues including eligibility for “aid in dying”, how capacity should be assessed, the role of physicians and other health care workers, the role of health care institutions, conscientious objection, regulatory oversight, and various procedural matters.
The underlying premise of the survey, however, was that either the provinces or the medical regulatory bodies should develop legislation or policies to ensure “equitable access” to “aid in dying” as a medical service. CLF’s response to the survey (available here) emphasized that Carter required a limited exception to a Criminal Code prohibition, the parameters of which should be set out by Parliament, and that in light of the limited scope of its declaration (para 127), assisted death should be exceedingly rare. CLF also submitted that this process was premature in light of the fact that legislation has not yet been enacted by Parliament.