Law

  • A Balance of Rights

    Supreme Court Chief Justice Beverley McLachlin once wrote that "a multicultural, multireligious society can only work if people of all groups understand and tolerate each other." But when one party's rights start to bump up against another's in that society...

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  • Mr. Pennings Goes to Ottawa

    As for the Senate, well, why go there?

    Democracy, we're told, is in deep trouble in Canada. On Parliament Hill, some male MPs stand accused of sexually harassing—possibly even assaulting—their female peers. Off the Hill, a veteran MP is convicted of flouting laws on electoral spending. Even poli...

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  • A Truly Bizarre Lapse

    The Court's decision to invalidate the existing law against assisted suicide opens the door for a powerful political response from Parliament. That is potentially good because Parliament has voted six times since 1993 to reject legalization of assisted suicide or euthanasia. One of the government of Canada's arguments before the Supreme Court was that Parliament has spoken on the issue. The Court's response was that it wants Parliament to speak again. This time, It wants Parliament to answer with a new law that at least allows doctors to assist in the suicide of those suffering from "grievous and irremediable medical conditions" such that failing to help them commit suicide would deprive them of the Charter's sec. 7 rights to life, liberty and security of the person. Gerry Chipeur, who represented the Christian Legal Fellowship as an intervenor before the Court, said the language used in the judgement lends itself to the tightest possible interpretation, and the crafting of a law that makes assisted suicide available in only the most extreme cases. "It could justify a law which would apply only to people who can't use their hands," Chipeur told Cardus following Friday's judgement. "As a constitutional lawyer, based on the language of this judgement, I'd say it's possible to write a law so tight that there might be 12 people in Canada who would qualify." Chipeur said the 12 months granted by the Court to Parliament for the writing of the new law could actually be a godsend for individuals and groups who oppose assisted suicide. It gives them time to focus, mobilize, and lobby for the most restrictive language possible—and also gives them a clear benchmark for the absolute minimum allowable under the Charter. Given that Justice Minister Peter MacKay said outside the Commons that the Harper government will take its time crafting any new legislation, vital opponents of assisted suicide can start working now to come up with rigorous language of their own to recommend to MPs who will be drafting and voting on the bill, Chipeur said.   The Court took full notice of conscience rights in the decision. A major good is the decision's clear, strong language that goes a long way, on paper at least, toward protecting those who would refuse to participate in doctor-assisted suicide for reasons of conscience or religious belief. "In our view, nothing in (the decision) would compel physicians to provide assistance in dying. The (decision) simply renders the criminal prohibition invalid." Indeed, the Court noted it was asked by the Canadian Medical Association to direct Parliament to build conscience protection into any new law. It declined to give that direction, saying "what follows (the decision) is in the hands of physicians' colleges, Parliament and the provincial legislatures." Again, that gives those concerned with conscience rights full field to press at the political level for guarantees in any new legislation. The CMA itself has said it considers that providing doctor-assisted suicide is an individual decision. Only a minority of its members say they would participate in an assisted suicide. Conscience protection combined with a scarcity of practitioners and an extremely high qualifying standard to receive the "treatment" could render the number of assisted suicides in Canada negligible.   The Court has slammed the door on provinces using health care—and any provincial jurisdictional claim—as a pretext to circumvent the federal Criminal Code. The third potential good may seem like a consolation prize, and a highly technical one at that. But it has significant and immediate implications for Quebec's Bill 52, which legalized doctor-assisted death in the province a year before the Supreme Court's decision and in defiance of Canadian criminal law. During the Court hearing, Quebec argued that its share of jurisdiction over health care gives it the power to legalize assisted suicide regardless of any laws that Canada has on the federal books. It was the second time Quebec has tried to advance the same argument in a Supreme Court case under the pretext of a constitutional principle called interjurisdictional immunity. The nine justices reminded the province quite sharply that it had already been told once the claim is a non-starter. It doesn't mean Quebec's Bill 52 is automatically invalid. It does mean it may have to be re-written to conform to the stringencies of any new federal law. It also means that in terms of federal criminal law at least, Parliamentary supremacy still has some clout.   There will be some form of assisted suicide available in Canada within the next 13 months. That is obviously a bad thing if you believe that the State should be in the business of protecting human life until the natural end of life. It's bad if you believe assisted suicide to be a polysyllabic euphemism for killing. It's bad if you believe that Canada's publicly-funded health care system is no place for the deliberate killing of human beings. The composite worst of all three bad things was the logic by which nine justices of the Supreme Court of Canada accepted that a) the State must limit its protection of human life, b) that killing is acceptable with the right provisos, and c) that the health care system is a perfectly acceptable place for such killing to take place. In essence, the justices agreed that assisted suicide is legitimate because it allows the person to die later than he or she might have otherwise. People with progressive illnesses might feel such despair at what they perceive as their fate that they will take their own lives Tuesday absent the possibility of an appointment to have someone else kill them Wednesday. The logic is equivalent to saying that hangings should always take place in the evening lest the victim hangs himself in the morning and lose 12 sweet hours of life. As a bald proposition it could easily be dismissed as the fever dream of a lunatic. But it's not. It now has the imprimatur of the supremely intelligent, highly accomplished, all-but-omnipotent nine justices of Canada's highest court. No matter how many Canadians are ultimately killed through assisted suicide, something fundamental died on Friday, February 6, 2015. It was legal reasoning tempered by reality.   It's entirely possible assisted suicides will take place in the absence of any law. This is the ugly prospect that few seem to fully recognize in the aftermath of the decision. It stems from the media-fed mistake that the Supreme Court decision struck down a law against doctor-assisted suicide. It didn't. As the Court itself said, it "simply render(ed) the criminal prohibition invalid." And the existing criminal prohibition says nothing about physician assisted suicide. It says that "everyone"—and that is critical to keep in mind—who aids or abets a person to commit suicide is guilty of an indictable offence. Everyone. Doctors, yes, but also butchers, bakers, and candlestick makers. The judgement directs Parliament to find a way to carve out an exemption for doctors. In a truly bizarre lapse, it never actually makes the case for why doctors particularly should be the ones to assist in suicides. After all, killing is antithetical to medical care. And the reality is, most general practitioners in this country receive far less training in ending life than veterinarians do. So, the folks who know less about induced dying than the person who gives Fluffy the Cat the final needle are now to be put in charge of grandma's lethal dose? It does give pause. But even with proper training and specialization, why doctors? Why not husbands, wives, and public hangmen? The Court does not say. And that is truly frightening because it compounds its counter-intuitive assumption about doctors with a truly perilous assumption that Parliament will certainly pass a law and enact a regulatory regime in the next year. The experience of abortion in this country shows the assumption to be fraught with terrible disregard for history and political reality. Doctors perform abortions in this country today largely because there was a medical regime governing abortion in place prior to the Supreme Court striking down Canada's abortion law in 1988. Subsequently, we have been at an utter political impasse over any way to regulate abortion. The last attempt, under a Progressive Conservative majority government, died on a tie vote in a deeply divided Parliament. We are, as many have noted, literally lawless on abortion, and have been for 27 years. There is no existing medical regime for assisted suicide. If Parliament fails to enact a new law within a year, we won't have doctor assisted suicide. We won't have a law governing assisted suicide. If recent history is a guide, we genuinely risk never having one. Enter the butcher and the public hangman. Enter the barbarians. That makes this decision, potentially at least, one of the ugliest moments in Canadian history.  

    Terrible as the Supreme Court's judgement on doctor-assisted suicide will be for many overall, there are at least three good potential outcomes to it. Of course, there are also at least two things—one bad, one very ugly—that could come of it as well.

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  • Nova Scotia and TWU FAQ

    On January 28, Justice Jamie S. Campbell of the Nova Scotia Supreme Court ruled the Barrister’s Society (NSBS) was acting outside its jurisdiction and violated religious freedom as set out in Canada’s Charter of Rights and Freedoms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

    Last year, the Nova Scotia Barrister’s Society said it would not allow graduates of a planned law school at Trinity Western University to practice law in the province unless TWU dropped its community covenant obliging students to refrain from sexual relatio...

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  • Christian Lawyers and Doctors Need Not Apply

    In 2014, lawyers and doctors were targeted by their own professional associations for direct attack because of their religious beliefs. For Christian lawyers, the first salvo was fired at Trinity Western University’s law school. TWU, which exists to “develop godly Christian leaders” in a variety of marketplaces, requires its students and staff to sign a Community Covenant.

    It has become a scary time to be a Christian professional in Canada.

    In 2014, lawyers and doctors were targeted by their own professional associations for direct attack because of their religious beliefs.

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  • Transparency for the Common Good

    This cliché is often splashed across social media feeds, encouraging the faithful to take a stand for what is right. But a defensive attitude can also encourage believers to invoke religious liberty on its own merit. "The difficulty with ... an 'opaque' claim to religious liberty is that it allows those who oppose the claim to paint over it their own motivations and their own understanding of the motivations of believers, and to characterize that exercise of religious liberty as if there's something nefarious or untoward behind it, like a motive to discriminate or a motive to oppress. So I think it's important for people of faith to make 'transparent' claims," said MacLeod. "In fact, we're asking for the liberty to do good things in the public, to serve our neighbours, and to obey conscience: duty to something higher than ourselves."

    "If you don't stand for something, you'll fall for anything."

    This cliché is often splashed across social media feeds, encouraging the faithful to take a stand for what is right. But a defensive attitude can also encourage believers to invoke religio...

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  • The Core of the Euthanasia Clash

    While the so-called Carter case was argued on the merits of discovering in the Canadian constitution a right to what might be called concierge service suicide, the heart of the discussion was really the balance of power between the courts and Canada's Parliament. All constitutional cases, by their nature, engage that balance in differing ways, particularly when they involve the sections of the Charter of Rights dealing with security of the person and equality rights. Yet Wednesday's forensic test match on euthanasia touched a tipping point that may have been brushed against only 26 years ago in the Morgentaler case on abortion; perhaps not even then. One is the steadfastness with which the government of Stephen Harper has insisted it will not re-open legislative debate on legalizing euthanasia or assisted suicide. The government insists Parliament has amply declared itself on the issue by voting repeatedly, emphatically and across party lines to keep the current laws on the books. Indeed, MP Francine Lalonde's last attempt was voted down 228-59 before it could even pass second reading in the House of Commons.

    This week's Supreme Court hearing on euthanasia was about life and death, of course, but it is equally about a powerful clash of institutions.

    While the so-called Carter case was argued on the merits of discovering in the Canadian constitution a righ...

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  • US Supreme Court rules business isn't a religion-free zone

    The controversy is over the contraceptives mandate in the 2010 health care reform law, which requires employers' health plans to cover a wide range of contraceptive drugs and devices, including some the companies and others regard as abortifacients. Churches are exempt from the mandate; after widespread protest, religious nonprofits such as colleges and hospitals were offered an "accommodation": the insurer provides to the organization a health plan excluding objectionable contraceptives and then announces to the employees that those contraceptives will be paid for by the insurer.

    The US Supreme Court yesterday vindicated two Christian-owned companies, Hobby Lobby and Conestoga Woods, that have a pro-life objection to including in their employee health plans certain contraceptive drugs and devices. In a 5-4 decision, the Court ...

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  • The Secular Democracy and its Victims

    Surely it is possible, within a liberal democracy, that we can, without bloodshed, lay bare some deep rifts between value systems. But we're only fooling ourselves—playing with house money—if we don't constantly scrutinize and re-evaluate the "why" questions beneath our differences. The preoccupation with "what" questions in the ongoing Trinity Western University (TWU) community covenant debate has left the "why" questions unanswered.

    If our freedom of religion and our freedom to associate mean anything all, surely they allow those who disagree to coexist, without coercing each other.

    Surely it is possible, within a liberal democracy, that we can, without bloodshed, lay bare some ...

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  • Prostitution, Advocacy, and Canada's Bill C-36

    Most Canadians know little about prostitution, but still feel strongly about it. Few see prostitution as a healthy thing for Canadian women, children, men, or communities. Even those who do, generally don't want the women (and it's overwhelmingly women) walking their street. And as Canada's laws on prostitution were challenged in the courts, more Canadians became aware that upward of 90 percent of those marketed in the world's oldest profession are commodities of sexual pleasure against their will.

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  • The Right to be Forgotten

    Last week, a European court ruled that Google had a legal obligation to comply with a Spanish man’s request that certain unflattering online references to him not show up in Google searches. The digital edition of a 1998 newspaper included the notice of his...

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  • De-Register the Liberals, Anyone?

    With tongue firmly in my cheek, I want to propose that all tolerant, open-minded Canadians join me in my quest to de-register the Liberal Party of Canada. I don't propose we do this lightly. But just as various law societies are deciding (after carefully co...

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  • The Public Square Must Be Controlled

    Last year, I overcame my nature-and-nurture revulsion toward the Trudeau name.  Setting aside my reflexive loathing of Pierre Elliott Trudeau as a prime minister, I praised his son—despite the many sins of the father—for his immediate and pointed rejection of Quebec's odious Charter of Values.

    Dismiss this if you like as the churlishness of a Westerner who has lived many years in Quebec, but Justin Trudeau reminds me of a one-eyed inebriate playing whack-a-mole. On the rare occasions when he scores a clean hit, he celebrates by thumping himself i...

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  • Regimes of Tolerance

    The Law Society of Upper Canada and the Nova Scotia Barrister's Society have decided that while the institution that teaches lawyers in British Columbia—TWU's forthcoming law school—is constitutionally acceptable, its graduates are not fit to practice law. That is, neither LSUC nor NSBS have submitted that Trinity Western's code of conduct policy is unconstitutional—they know this because the Supreme Court ruled very clearly that it is constitutional. They also are fully aware that in the same decision, regarding teachers who were taught at TWU and were required to sign the same Community Covenant, there was, as Albertos Polizogopoulos put it last week, "no evidence that TWU's students, who had signed and abided by the Community Covenant, demonstrated any discriminatory behaviour in the exercising of their duties as teaching professionals."

    If law societies are, so to speak, the marrow which supplies blood to our legal system—a society which has, as its very raison d'etre the "duty to protect the public interest, to maintain and advance the ...

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  • The Chance to Speak Up

    Related: Cardus covered in today's National Post Summary briefing of the case from last week (free PDF) "Loyola's Freedom of Religion" Paul Donovan explains the importance of the case (YouTube)  

    Cardus has covered the issues involved in Loyola et al vs. the Attorney General of Quebec on many occasions. Always our position is that the organizations of civil society, including those that are religiously motivated, must be free to participate...

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  • Corporate Faith

    Yet when the Supreme Court of Canada hears arguments next month in the dispute between Loyola High School and the government of Quebec, the implications will be at least as far reaching as TWU's bid to marry an evangelical Christian ethos with accreditation of our next generation of lawyers. . . .

    Debate over Trinity Western University's bid to open a new law school in B.C. has overshadowed the religious freedom fight faced by a 166-year-old Montreal high school.

    Yet when the Supreme Court of Canada hears arguments next month in the dispute be...

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  • The York University Question: It's not about sex—it's about the law

    All of these characterizations are, in my opinion, wrong. Here's why. There is no question of, nor threat to women's equality rights in the accommodation request of an online university student. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

    There has been much talk about York University's decision to accommodate the religion...

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  • The Opposition's Might Suggests the Cause is Right

    While the rest of the country ponders what it means for a religious institution to be granted a public-serving law school, the news this week has been illustrated rather more personally for me. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

    This country is to have a new law school—one unlike any other existing accredited Canadian legal institution: On Wednesday, British Columbia's Minister for Advanced Education, Amrik Virk, announced that his department would follow ...

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