BC court to hear Charter challenge on religious exemption to assisted dying law

A hearing starting Monday in the Supreme Court of British Columbia questions whether publicly funded faith-based hospitals should be allowed to prevent patients from receiving medical assistance to die in their facilities.

The Charter of Rights challenge is being brought by the advocacy organization Dying with Dignity Canada and the parents of a woman who was forced to leave a Vancouver hospital to receive medical assistance in dying, known as MAID.

Sam O’Neill was 34 when, in March 2023, she was admitted to Vancouver’s St. Paul’s Hospital with severe pain as a result of stage 4 cervical cancer, which had spread to her bones and lungs.

She was evaluated and approved for medical aid in dying — but because the hospital is run by a Catholic organization that does not allow MAID, she had to be taken to another facility to complete the procedure.

In court documents, her family and friends say O’Neal was in excruciating pain in her final hours and did not want to move from her room. He had to be completely sedated and did not regain consciousness before his death.

The statement of claim argues that the transfer “exacerbated Ms. O’Neill’s severe physical and psychological suffering and deprived her of a dignified death, including the ability to say goodbye to her family and loved ones.”

Helen Long, CEO of Dying with Dignity Canada, said the group will argue that hospitals – unlike individual health-care providers – “do not have conscience rights.”

He said, “I think the expectation is that if my tax money is funding this hospital, I should be able to get the health care I need.”

Daphne Gilbert, a law professor at the University of Ottawa, helped initiate the case.

He said, “We argue that it is the responsibility of the government to remain neutral in matters of religion. The principle of secularism is a constitutional principle.”

Gilbert, who is also vice-chair of the board at Dying with Dignity Canada, has researched both MAID and conscientious objection.

He said, “To allow a Catholic board and a Catholic Church – and especially the Archbishop of Vancouver – to direct care in a publicly funded hospital is completely repugnant to a secular view of public life.”

The defendants include B.C.’s Ministry of Health, the Vancouver Coastal Health Authority and Providence Health Care, the organization that operates St. Paul’s Hospital and 17 other health facilities, including hospices and long-term care homes.

The Ministry of Health’s policy on MAID allows faith-based organizations to refuse to provide assistance to the dying in the facilities they operate.

Providence Health declined to comment on the specific case. In a statement, it said it had a “long-standing ethical tradition of compassionate care that neither prolongs nor hastens dying, rooted in the belief that all life is sacred and in the dignity of the person.”

Vancouver Coastal Health and the BC Ministry of Health did not respond to requests for comment prior to publication.

In its statement of defense filed in BC Supreme Court, Providence Health said it does not prevent patients from receiving MAID, but rather facilitates transfer to another location — including, in some cases, a different room in the same building.

The rationale is that some patients seek health care at a facility that does not provide MAID.

Court filings show 3,397 people have had medically-assisted deaths since Vancouver Coastal Health became legal in 2016.

Since 2023, 122 people have been transferred from faith-based facilities within Vancouver Coastal Health to receive the procedure, including 49 people who were moved to an “adjacent location.”

Health Canada’s latest data for 2024 shows that 349 people who died with medical assistance in Canada were transferred out of a facility earlier because of its policies.

The plaintiff’s statement of claim argues that some patients are effectively being denied MAID because they are too weak to be transferred, or because there is no alternative facility to which they can be sent in a timely manner.

The claim argues that Section 2 of the Charter, which protects freedom of conscience and religion, “prohibits the government from compelling individuals to perform otherwise lawful acts or from preventing them from performing them because of the religious significance of those acts to others.”

It argues that the Section 2 Charter rights of physicians and MAID providers are being violated when they are forced to transfer patients “to conform to and enforce the religious beliefs of others.”

Providence argues that Section 2 protects it “from being forced to provide services that are contrary to deeply and sincerely held beliefs” and that its decision not to provide MAID is not subject to the Charter, which only “binds the actions of governments.”

The case will involve several intervenors, including the Canadian Civil Liberties Association, the BC Humanist Association, the Canadian Center for Christian Charities, Canadian Physicians for Life and the Christian Legal Fellowship.

Four weeks have been set aside to hear evidence and further arguments will be heard in April.

Gilbert said he expects any decision to be appealed to the Supreme Court of Canada.

“The Supreme Court has never ruled on whether there is such a thing as institutional freedom of religion and conscience, but there have been some statutes where they have discussed this possibility,” he said.

He said if the plaintiffs are successful, it would have a cascading effect on the more than 100 publicly funded health-care institutions across Canada that are faith-based.

He said, “If we win in British Columbia, it will have a profound impact on the entire country because the Constitution is a national document.” He said the decision could also affect access to abortion and contraception in faith-based institutions.