Canadians are grappling with one of the most difficult legal issues we have faced in decades: our collective responsibility to facilitate medically assisted death for those who choose it and satisfy the legal criteria. Since the Supreme Court decided in 2015 that Canadians have a Charter-protected right to a dignified death of their choosing, governments, doctors, hospitals and citizens have struggled to accept and move forward with a workable regime. One of the biggest impediments, however, is institutional resistance. Hospitals that claim a right to conscientious objection may well prove the Achilles heel in government efforts to breathe life into a right to die.
Catholic hospitals, which are publicly funded, take the position that as institutions they have religious rights under the Charter of Rights and Freedoms. This position was recognized by some Supreme Court judges in a 2015 case known as Loyola High School v Quebec. Three judges concluded that a religious institution, as a collective, could claim a right to freedom of religion under Section 2(a) of the Charter. However, the three judges added a key caveat to this conclusion: “”¦ an organization meets the requirements for s. 2(a) protection if (1) it is constituted primarily for religious purposes, and (2) its operation accords with these religious purposes.” Publicly funded hospitals do not satisfy this test and therefore have no claim to freedom of religion.
an individual physician may have a Charter-protected religious right to ask another doctor to take over the role of ending a life
At first glance this protects at least individual conscience. But if another doctor is not readily available – or if the doctor who declines to euthanize thereby makes the patient feel uncomfortable, or discriminated against – we may be sure that law suits are bound to follow. John Richard Niehaus’s dictum applies: ‘Where heresy is made optional, sooner or later it will be mandatory.’