Religious exemptions to assisted dying law: B.C. Supreme Court to hear Charter challenge

A screen displays a patient's vital signs during open heart surgery at the University of Maryland Medical Center in Baltimore. THE CANADIAN PRESS/AP, Patrick Semansky

OTTAWA — A trial set to begin Monday in British Columbia’s Supreme Court questions whether publicly funded faith-based hospitals should be allowed to prevent patients from receiving medical assistance in dying 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 years old 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 that had spread to her bones and lungs.

She had been assessed and approved for medical assistance in dying — but because the hospital is run by a Catholic organization that does not allow MAID, she had to be moved to another facility to carry out the procedure.

In court documents, her family and friends say O’Neill was in intolerable pain in her final hours and did not want to move from her room. She had to be fully sedated and did not regain consciousness before her death.

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

Dying With Dignity Canada CEO Helen Long said the group will argue that hospitals — unlike individual health-care providers — “don’t have conscience rights.”

“I think the expectation is if my tax dollars are funding this hospital, I should be able to access the health care I need,” she said.

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

“Our argument is that the government has an obligation to be neutral in matters of religion. The secularism principle is a constitutional principle,” she said.

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

“Allowing a Catholic board and a Catholic Church — and more specifically the Archbishop of Vancouver — to dictate care in a publicly funded hospital is totally antithetical to a secular approach to public life,” she said.

The defendants include B.C.’s health ministry, 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 health ministry’s policy on MAID allows faith-based organizations to opt out of providing assisted dying in the facilities they operate.

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

Vancouver Coastal Health and the B.C. health ministry did not respond to requests for comment before publication.

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

It argues that some patients want health care at a facility that does not provide MAID.

Documents filed in court show 3,397 people have obtained medically assisted deaths within Vancouver Coastal Health since it became legal in 2016.

Since 2023, 122 people have been transferred out of faith-based facilities within Vancouver Coastal Health to obtain the procedure, including 49 who were taken to an “adjacent space.”

Health Canada’s latest data from 2024 shows 349 people who died with medical assistance in Canada were first transferred out of a facility due to its policies.

The plaintiffs’ statement of claim argues some patients are being effectively denied MAID because they’re too frail to be moved, or because there’s no alternative facility they can be sent to in time.

The claim argues that Section 2 of the Charter, which protects freedom of conscience and religion, also “prevents the government from compelling individuals to perform or abstain from performing otherwise lawful acts 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 infringed on when they are forced to transfer patients “in order to conform with, and implement, the religious beliefs of others.”

Providence counters that Section 2 shields it from being “compelled 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 include a number of interveners, including the Canadian Civil Liberties Association, the B.C. Humanist Association, the Canadian Centre for Christian Charities, Canadian Physicians for Life, and the Christian Legal Fellowship.

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

Gilbert said she expects any judgment will be appealed to the Supreme Court of Canada.

“The Supreme Court has never ruled on whether there is such a thing as an institutional freedom of religion and conscience, but there’s been some case law where they’ve discussed the possibility,” she said.

She said if the plaintiffs are successful, it will have broad implications for the more than 100 publicly funded health-care institutions across Canada that are faith-based.

“If we win in British Columbia, it will have a domino effect across the country because the Constitution is a national document,” she said, adding that a ruling could also affect access to abortion and contraception at faith-based institutions.

Sarah Ritchie, The Canadian Press