It started with a Supreme Court ruling that government could not criminalize doctor-assisted death. Now, a parliamentary committee is recommending that all publicly funded health-care institutions provide the service, and major Catholic hospitals such as St. Paul's in Vancouver and St. Joseph's in Hamilton are drawing a line in the sand against it.
Canada is being thrust into its biggest religious-freedom debate since Quebec's proposed charter of values three years ago would have banned the wearing of turbans, kippahs and hijabs by government employees.
Is the committee recommending one kind of unconstitutional act replace another? Or are religious institutions failing to live up to their obligations in the public sphere?
At the heart of the committee's recommendations was a kind of contradiction: Doctors should have the freedom of conscience not to have to provide assisted death, the committee said. But institutions should not have the same freedom of conscience.
A pressing question, then, is whether a religious-based institution has rights similar to those of an individual under the Charter.
The answer is that they do, and the Supreme Court has said so in several cases. "The freedom of religion of individuals cannot flourish without freedom of religion for the organizations through which those individuals express their religious practices and through which they transmit their faith," Supreme Court Chief Justice Beverley McLachlin wrote last year. That was a case in which the court told the Quebec government it could not force Loyola High School, a Jesuit school in Montreal in operation since 1896, to abandon teaching Catholicism from a faith-based perspective.
The principle from the Loyola case, says Richard Moon, a Windsor University law professor who wrote a textbook on religious-freedom cases, is that "not only is there a collective dimension but an institution itself can make a claim" of discrimination.
Still, the assisted-death case is different in some ways, he points out. The country's 100-plus Catholic health-care institutions serve the wider public, not just Catholics. "It's a very odd situation in which we have incorporated religious charitable institutions into a public health-care delivery system."
To law professor Ubaka Ogbogu of University of Alberta, government should withdraw funding if necessary to make the point that it will not allow religious institutions to discriminate. "We live in a secular society. If you're using public money to provide services, then you can't use it in a manner that is discriminatory – for example, if I set up a hospital where I am not going to treat women" for religious reasons.
But then, could government refuse to fund Catholic hospitals because they do not provide abortions? "By the same reasoning, yes." The non-provision of abortions in Catholic hospitals has not been an issue in Canada.
Vancouver lawyer Kevin Boonstra says Catholic hospitals could argue discrimination if funding were withdrawn for protecting their religious beliefs; Prof. Moon is not so sure, saying government has no positive obligation to fund hospitals.
In any event, to threaten to withdraw funding would be politically difficult: Faith-based hospitals have been providing public care for hundreds of years; trying to impose one set of rules for all involves a marked change from established practice.
"Across Canada, Catholic religious orders pioneered the provision of health care to all, regardless of belief, because of their commitment to the sanctity of human life," says David Mulroney, the president of the University of St. Michael's College in Toronto. "By respecting and protecting freedom of conscience, governments enable various communities to share their gifts with others and to play a full role in the life of our country. Nothing could be more Canadian than such enlightened tolerance."
Civil liberties groups often associated with freedom of conscience take a different approach, however. The Canadian Civil Liberties Association agrees with the parliamentary committee, and proposes outside doctors be brought in if patients seeking an assisted death could not be moved from a Catholic hospital. "There may be a situation where hospitals whose physicians refuse may have to allow physicians to come in and perform this service," says Cara Zwibel, director of the association's fundamental freedoms program.
She said that would be a "reasonable restriction on their freedom of religion, because the alternative is that access to this service could eventually be completely denied to patients." Under the Charter, government may impose reasonable limits on Charter rights and freedoms.
Gerald Chipeur, a Calgary lawyer, says that according to the Supreme Court, it is unreasonable to limit a Charter freedom when there is a less restrictive means available to reach a goal. He said the court made the point in the assisted-death case last year known as Carter v. Canada. One option, he said, is to transfer a patient to another hospital; another is to discharge a patient to their home or a hotel room.
He sees a historic dimension in the current debate. "We do not want to go back to the period between 1763 and 1774, when the English Test Acts prohibited the participation of Catholics in public life in Quebec. [The Test Acts were a series of laws that made Catholics and others who did not follow the established Anglican denomination ineligible for holding public office in the British Empire.] The Quebec Act of 1774 restored all civil rights to Catholics. It would be unconstitutional and mean-spirited to roll back progress 240 years and deny Catholics the opportunity to serve the public."