From conception to cremation, Bill 207 could deny wide range of services

Anyone who lives in a remote rural area knows the frustration and potential danger of being unable to get immediate emergency medical services. Now imagine if the only emergency physician in town refused to help because you don’t attend his church. Bill 207 gives such gatekeeping authority, with the power to affect all Albertans, from conception to cremation.

According to backbencher UCP MLA Dan Williams, Bill 207 is needed to ensure the Charter-protected fundamental freedoms of conscience and religion held by health-care providers so that they ”never have to choose between their most deeply held convictions on one side and their jobs on the other.”

Indeed, Section 1(c) of Bill 207 defines “conscientious beliefs” to mean “the beliefs of the health-care provider or religious health-care organization that are protected as fundamental freedoms under section 2(a) of the Charter, including religious beliefs, moral and ethical values and cultural traditions.”

Under Bill 207, which also changes the Alberta Human Rights Act to include conscientious beliefs, any medical practitioners, students, interns, therapists or religious health-care organizations that claim your religious or life choices offend their own religious beliefs, moral or ethical values, or cultural traditions, will be able to refuse services, regardless of the condition or urgency — with impunity. The bill includes taking away your ability to make a complaint.

Bill 207 applies to members of the College of Physicians and Surgeons of Alberta — which includes practitioners of virtually every medical specialization that deals with people’s physical, mental and psychosocial conditions, and with health-related research, education and administration.

Bill 207’s vast reach is surprising: It applies to more than 30 categories of medical and mental health practitioners who provide elective, medically necessary and lifesaving treatments. The list is long and includes emergency, primary and critical care paramedics; midwives, chiropractors, podiatrists, psychologists and psychiatrists; lab, respiratory, ultrasound and X-ray technologists; pharmacists, physiotherapists and physical therapists; opticians and optometrists; dieticians and nutritionists; anesthesiologists, surgeons, and social workers; audiologists, dental professionals and speech-language pathologists.

Every one of Alberta’s 38,000 nurses, occupational health nurses and nurse practitioners (who might be the only health-care provider in the region) will be able to claim “conscience rights” and refuse to treat patients — with impunity.

Suffering from COPD or alcoholism? Your teen daughter was raped and wants an abortion? Want a vasectomy, tubal ligation, birth control, or the morning after pill? Want to be tested for a sexually transmitted disease? Your clothing reflects beliefs that differ from those held by your doctor? In all those cases, Bill 207 allows treatment to be refused by everyone licensed to practice any sort of medicine — with impunity.

Suffering from PTSD because you served as a member of the Canadian Armed Forces and were sent to a war zone? Psychologists, psychiatrists and other therapists who believe war is wrong could refuse treatment — with impunity.

Accidentally get stuck with a needle while trying to help a homeless person or while helping with an abortion and you are worried about HIV? Emergency services personnel will be able to deny treatment and jeopardize your life — with impunity.

Feeling suicidal because you’re struggling with your sexuality or gender identity? Social workers, therapists, psychologists and psychiatrists could refuse treatment — with impunity.

Prefer not to endure a prolonged, painful death and want to have a legal, medically assisted death? If that treatment violates the policy of the only medical facility in your region, you could face a long and gruesome future when MAID is denied — with impunity.

Bill 207 is much more than a way to honour medical practitioners’ beliefs. Practitioners who refuse to treat will only have to suggest obtaining services elsewhere, without being obligated to identify who can provide the services. If you don’t like the refusal, then you cannot complain, and it is legislated that such action is not unethical or unprofessional.

Albertans should be grateful that the bill only talks about denying service because of one’s conscience. Albertans will be in a much more precarious position if the government allows practitioners to perform services that align with their personal beliefs — which would open the gates to decisions based on cultural “honour,” female genital mutilation and other “procedures” that have, thus far, been considered to be inconsistent with Canadian beliefs, moral or ethical values, or cultural traditions.

Reprinted from the Calgary Herald. November 14, 2019

Sharon Polsky is a member of the Rocky Mountain Civil Liberties Association.

Posted in Access to Justice, Democratic Rights, Economic Rights, Freedom of Expression, Freedom of Religion, Fundamental Human Rights, Rule of Law | Comments Off

Election Survey Results: What Candidates Say about Civil Liberties Issues

As a voice for civil liberties in Alberta, the Rocky Mountain Civil Liberties Association (RMCLA) asked more than 250 candidates in the upcoming 2019 general election for their views about five important issues that are essential for democratic engagement and genuinely accountable government:

  • Children’s privacy rights
  • Police ‘carding’ and information sharing
  • Government transparency and a ‘duty to document’
  • Access to medical services
  • Censorship by public bodies

Emails were sent to the candidates within 24 hours of the election being announced. A reminder was sent a week later, clarifying that we wanted candidates’ own views, not just the party platform.

THE SURVEY RESULTS

257 — The number of candidates who received personalized email with the survey questions

70 — The percentage of candidates who opened the email request

20 — The number of candidates who acknowledged receiving the survey

18 — The number of candidates who offered substantive answers

5 — The number of candidates who reiterated or suggested reading the party platform

3 — The number of candidates (including one who has since dropped out of the race) who ‘unsubscribed’ from receiving further communications

Candidates’ responses can be seen in this downloadable document: 2019 AB ELECTION CANDIDATE SURVEY-RESPONSES

Was the low response rate because candidates think the issues aren’t important? Because they’re just busy with other, more important things? Because the candidates don’t really understand the importance of the issue?

Alberta voters must decide for themselves.

Read the survey questions and backgrounders here

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How the West will be lost this time around

Future historians might look back at this moment in history as when the West, meaning the Western world, was lost. And the defining image of that may well be a smartphone.

There is a worrying trend, particularly among younger voters — the much-maligned millennials — to regard democracy as, if not a bad thing, then at least a nonessential thing. With a change underway, extreme parties that may have been around for a long time are now doing better than ever, and even achieving power, fueled by information overload in a globalized world…Read more

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Civil Liberties Don’t Start at 18

United Conservative Party Leader Jason Kenny is calling for legislation that will enable teachers to communicate to parents that their child has joined a Gay Straight Alliance (“GSA”). The UCP’s position persistently fails to recognize that civil liberties do not start at the age of 18. Children in Alberta have constitutional rights — before their 18th birthday — and they are entitled to have those rights respected. Continue reading

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RMCLA Surveys 2019 Election Candidates about Civil Liberties Issues

As a voice for civil liberties in Alberta, the Rocky Mountain Civil Liberties Association (RMCLA) has asked candidates in the upcoming 2019 general election for their views about five important issues that are an important reflection of democratic engagement and genuinely accountable government:

  • Children’s privacy rights
  • Police ‘carding’ and information sharing
  • Government transparency and a ‘duty to document’
  • Access to medical services
  • Censorship by public bodies

Continue reading

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Right to Speak

Under the Charter of Rights and Freedoms, Canadians enjoy a right to freedom of expression. Yet Jordan Peterson events have been cancelled, there was an uproar when environmentalist Tzeporah Berman was to speak in Alberta, and other speakers whose views are considered, by some, to be controversial or unwelcome have been banned from speaking at venues across Canada. Should they have been allowed to speak or been censored? Who decides? And who decides who decides?

For some thought-provoking views on the topic, listen to Right to Speak

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Physician vs Patient: When Rights Collide

In January 2018, Ontario’s Divisional Court released its decision in a case called The Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (CanLII). The Divisional Court dismissed a constitutional challenge to the College of Physicians and Surgeons of Ontario’s (“CPSO”) policies, which require physicians to provide patients with an effective referral to another health care provider when the physician is unwilling to provide elements of care on moral or religious grounds (the “Mandatory Referral Policy”). The Christian Medical and Dental Society of Canada (“CMDSC”) argued that these policies violate physicians’ freedom of religion and conscience, which is protected by section 2(a) of the Canadian Charter of Rights and Freedoms.

The Divisional Court’s decision is under appeal. The Court of Appeal for Ontario is set to hear argument in late January 2019.

The Divisional Court found that the Mandatory Referral Policy violated physician’s freedom of religion and that the violation was demonstrably justified as reasonable limit in a free and democratic society. An important aspect of this situation was not addressed in the Divisional Court’s decision. It is questionable whether the physicians’ refusal to refer is protected by the Charter.

In a publicly funded healthcare system, a doctor’s refusal to refer a patient to receive a legally available medical treatment that the patient is eligible for violates that patient’s right to autonomy and dignity. These refusals to refer are not protected by the physicians’ freedom of conscience and religion. In fact, a refusal to refer violates the patient’s right to freedom of religion, because it imposes the doctor’s religious and moral convictions onto the patient.

Freedom of religion protects sincerely held beliefs and manifestations of belief through practice. To establish an infringement of the freedom of religion, the CMDSC must demonstrate that the  Mandatory Referral Policy interferes with a physician’s ability to act in accordance with their beliefs or practices in a manner that is non-trivial or not insubstantial.

According to CMDSC, some physicians who believe that abortion and medically-assisted death are immoral or sinful believe that they cannot provide those services and that referring a patient to a physician who will provide those services constitutes participation or complicity in the provision of sinful or immoral procedures. According to the Divisional Court’s decision, the Mandatory Referral Policy interferes with these beliefs in a non-trivial way. The Court found that failing to follow the Mandatory Referral Policy would put doctors at risk of professional discipline, and would therefore prevent physicians from acting in accordance with their beliefs.

The problem with this finding is that it is tantamount to finding that publicly funded doctors have the right to nullify patient’s constitutional rights to access medical care in the name of doctors’ freedom of religion. This is unacceptable in a free and democratic society that acknowledges, and even embraces, a plurality of ethical, moral, and religious views.

In essence, the CMDSC seeks Charter protection to ensure, not just that its member doctors can abide by their religious beliefs, but also that all patients attended by their members also abide by CMDSC’s religious beliefs, whether or not those patients personally share those beliefs.

As Justice Rowe stated in Law Society of British Columbia v Trinity Western University, 2018 SCC 32 (CanLII) the “coercion of nonbelievers is not protected by the Charter” because freedom of religion is premised on the exercise of free will and the absence of constraint (see paragraphs 237-239). While Justice Rowe wrote alone (as in he did not write for a majority of the Supreme Court justices) in Trinity Western, he relied for his authority on the majority decision in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (CanLII) — a case in which the majority held that a freedom of religion claim was not protected by the Charter.

In Ktunaxa, an aboriginal group claimed that a spirit animal inhabited a mountain and if the mountain was developed the spirit animal would leave forever. In that case, finding that freedom of religion protected the spiritual animal would have been tantamount to finding that the non-believing public was restrained by these beliefs and could not access the mountain. The Christian Medical and Dental Society of Canada case is equivalent, and the Court of Appeal for Ontario should therefore come to the same conclusion and hold that freedom of religion is not violated by ensuring that patients can have meaningful access to the medical services that they deem necessary for their own well-being.

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Court of Appeal for Alberta Upholds Mandatory Minimum Previously Declared Unconstitutional

In a recent decision, the Court of Appeal for Alberta upheld the constitutionality of a mandatory minimum sentence provision in section 153(1.1)(a) of Canada’s Criminal Code. The decision is called R v EJB, 2018 ABCA 239. The mandatory minimum in section 153(1.1)(a) compels a sentencing judge to impose a term of imprisonment of at least one year for any person convicted of the offence of sexual exploitation where the Crown prosecutor elects to proceed with the prosecution by indictment.

The sexual exploitation offence captures a broad range of conduct. The offence criminalizes sexual contact between a person aged 16-17 and a person who is in a position of trust or authority towards that young person, or a person in a relationship of dependency towards the young person, or a person who is in an exploitative relationship with the young person. Relationships of dependency and exploitation tend to be foreseeable. However, a position of trust or authority can be constructed from the dynamics of the relationship between the 2 individuals and can therefore criminalize a range of conduct which many Canadians may find immoral but which arguably should hardly be considered criminal, much less punishable by a term of one year of imprisonment. In this vein, it should be noted that the criminal law regards 16 year olds as capable of consenting to sexual activity.

Because the offence criminalizes a broad range of conduct, those found guilty of the offence will vary substantially in their moral blameworthiness and degree of responsibility, key considerations for sentencing. Nonetheless, the mandatory minimum requires a one-year term of imprisonment regardless of the degree of responsibility or moral blameworthiness.

Mandatory minimums place a great deal of power in the hands of Crown prosecutors, who alone have the choice of whether to proceed with a charge, and if so, whether to proceed summarily (with a lesser minimum punishment) or to proceed by indictment (which carries with it a higher minimum punishment). The prospect of a mandatory one-year term of incarceration, regardless of the circumstances of the offence, serves as a powerful incentive for accused persons to plead guilty. In this sense, mandatory minimum sentences have the potential to be coercive tools that discourage presumptively innocent accused persons from exercising their right to a day in court.

Constitutional challenges to mandatory minimums are commonly framed as violations of the right to be free from cruel and unusual punishment under section 12 of the Canadian Charter of Rights and Freedoms. In R v RJB, the Crown appealed from the sentencing judge’s decision that found the mandatory minimum to be grossly disproportionate, the legal standard for whether a mandatory minimum amounts to cruel and unusual punishment under the Charter.

Two decisions from Canadian courts outside of Alberta have concluded that the mandatory minimum in section 153(1.1)(a) constituted cruel and unusual punishment that violates section 12 of the Charter. Those cases are R v Hood, 2018 NSCA 18 from the Nova Scotia Court of Appeal and R v Cristoferi-Paolucci, 2017 ONSC 4246 from the Ontario Superior Court of Justice. In light of the Court of Appeal for Alberta’s decision in R v EJB, there is now a conflict between the courts of appeal and superior courts across the provinces on a constitutional question which requires a unified answer. Hopefully, the Supreme Court of Canada will hear an appeal from R v EJB and further the overwhelming judicial trend in recent years of striking down mandatory minimums as unconstitutional by reversing the Court of Appeal for Alberta’s decision.

 

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Parenting and Polyamory: What is in the Child’s Best Interests?

In an April 4, 2018 judgment the Newfoundland and Labrador Supreme Court awarded a declaratory order pursuant to section 7 of the Children’s Law Act that three persons be named parents of one child. The current legislation in the province (and in most provinces) does not permit a child to have more than two parents. The three parents in question are a polyamorous family made up of two men and one women. When the woman had a child the family petitioned the court for the declaration recognizing them all as parents.

The court applied a best interests of the child test and determined it was in the best interests of the child for both fathers to have a recognized legal relationship with the child and therefore named them all as parents. The identity of the biological father has never been determined.

The court acknowledged the legislation never contemplated more than two parents. The court recognizes that when there is a gap in the legislation, such as not contemplating more than two parents, the determining factor has to be to protect the best interests of the child.

The court also recognized that it is important to take into account changing cultural norms in ensuring children’s best interests are protected. The court found in this instance the family was stable and provided a positive environment for the child. The court found there was nothing about the family make up which detracts from the best interests of the child. In fact the court supported the idea that to remove the status of one of the fathers would be detrimental to the best interests of the child.

Some specific facts in this case which may distinguish it from others include that there was an equal probability of biological parentage between the two fathers and the stable nature of their home. This could lead future courts to examine the home environment provided by families petitioning for similar treatment. A future court could potentially determine this ruling would not apply in the event the biological parents were clearly known.

Other courts in the country have named more than two parents in differing circumstances but not in a polyamorous family such as this where the family intends to parent together in one household. With this case and similar cases of multiple legally recognized parents across Canada, it may become appropriate to see a matter like this reach the Supreme Court for further clarification.

CC(Re), 2018 NLSC 71. Case Comment by Collin Smith, 2018

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Legislatively mandated “outing” is a form of compelled speech

On November 15, 2017, the Alberta Legislature passed Bill 24: An Act to Support Gay-Straight Alliances (GSAs). Previous legislation permits students to establish GSAs in Alberta schools, and Bill 24 extends GSA protections by prohibiting teachers from informing parents of students’ participation in GSAs without the permission of the student. The legislation is aimed at preventing the “outing” of students who choose to join a GSA and are uncomfortable sharing such information with their parents. The introduction of this legislation raises a number of potential civil liberties issues. On one hand, parents and religious-based schools are concerned about the bill’s impact on freedom of religion, expression, and association, along with parental rights. On the other hand, the proponents of the bill seek to guarantee the rights of students to exercise autonomy of their sexual identity without fear of being “outed”. Both perspectives will be explored in turn.

Parental Rights and Freedom of Religion and Expression

Advocating for parental and religious rights, the Justice Center for Constitutional Freedoms (JCCF) recently launched a court challenge, claiming that Bill 24 “violates the rights of parents and schools protected by section 2(a), 2(b), 2(d), and 7 rights” under Canada’s Charter of Rights and Freedoms. Alberta’s School Act mandates that school codes of conducts must comply with sections of the Act that might contradict the moral codes of conduct held by some independent schools and parents. Bill 24 amends the School Act by mandating the establishment of GSA clubs upon request. According to the JCCF, these provisions undermine section 2(a) of the Charter, which guarantee freedom of conscious and religion. Independent schools and parents hold “sincerely held religious beliefs regarding gender, marriage, and sexuality” and, according to JCCF’s claims, legislation requiring “government promoted ideology” contrary to these religious beliefs undermines freedom of conscious and religion.

The JCCF also points to section 2(b) of the Charter, which guarantees freedom of thought, belief, opinion, and expression. Bill 24 effectively compels independent schools to establish codes of conduct and clubs, even when those are in opposition to the school’s beliefs. Bill 24 also requires the Minister to write codes of conduct for schools not in compliance with the Act — something the JCCF argues could interfere with freedom of association under section 2(d).

Finally, JCCF argues that Bill 24 violates section 7 of the Charter, which guarantees life, liberty, and security of the person. According to JCCF, section 7 guarantees parental rights over decisions regarding their children’s education and development, including issues pertaining to morality and sexuality. By barring schools and teachers from notifying parents about their children’s membership in certain clubs, JCCF claims, Bill 24 effectively strips parents of their right to discharge parental responsibility and make decisions regarding education and morality.

The Rights and Autonomy of the Student

The arguments advanced by JCCF fail to account for the rights and perspectives of students. “Outing” students based on their association with a GSA would potentially engage several charter provisions as well as the Alberta Human Rights Act which supports the principle “that all persons are equal in: dignity, rights and responsibilities without regard to race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation.”

The School Act as it currently stands prohibits teachers from telling parents that a student has joined a GSA. However, nothing in the School Act prohibits parents from having a conversation with their child. And nothing prevents a student from telling their parents (or anyone else) they have joined a GSA. The elephant in the room is that if parents are unaware their child has joined a GSA it is because the child has chosen not to share that with their parents.

The proponents of parental rights argue for a legislative scheme that would require public servants – teachers – to observe, gather and record information about whether a student has chosen to join a GSA, and report that information to the student’s parents. What is the likely effect of such a measure? Well, if under the current legislation a student has chosen not to inform their parents that they have joined a GSA, that student is unlikely to join or continue to participate in the GSA if the legislation mandates disclosure to the student’s parents. The effect is a denial of access to the support and community that GSA’s offer LGBTQ students.

Further, the student will be effectively “outed” to their parents as LGBTQ and on terms not of their own choosing. A GSA’s straight allies are unlikely to care much about their parents being notified of their participation in a GSA. They can simply explain the nuance of being a straight ally. An LGBTQ student, however, will either have to reveal their sexual orientation to their parents or they will have to lie and pretend they are not who they truly are.

Several civil liberties issues flow from this. Section 2(b) of the Charter guarantees freedom of expression, which includes the right not to be compelled to speak. Legislatively mandated “outing” is a form of compelled speech, violating students’ freedom of expression. Further, Section 2(d) protects the fundamental freedom to establish, belong and maintain an association. Driving LGBTQ students away from GSA’s under threat of being outed to their parents effectively denies students the right to associate in the form of a GSA.

Further, section 7 protects every student’s right to life, liberty and security of the person, which cannot be deprived except in accordance with the principles of fundamental justice. The principles of fundamental justice include that a measure must not be grossly disproportionate to its objective. The right to liberty protects an irreducible sphere of individuality from deprivation by the state and applies whenever the law prevents a person from making fundamental personal choices. That irreducible sphere of individuality must include sexual orientation and gender identity, and a law which compels an LGBTQ individual to come out against their wishes deprives that individual of the fundamental personal choice of when, where, how and to whom they wish to come out to.

Security of the person guarantees the mental and physical wellbeing of LGBTQ students against interference by the state. A 2011 study found that 68% of transgender students, 55% of lesbian or bisexual students, and 42% of gay or bisexual students experience harassment and bullying based on their gender identity or sexual orientation. The extent of persecution includes physical harassment and assault in some cases, as well as sexual harassment. Driving students away from GSAs can only exacerbate these issues by depriving LGBTQ students of the safe, welcoming supportive community which GSAs foster for vulnerable students. Compelling disclosure of one’s sexual orientation also violates the principles of Alberta’s Human Rights Act that serve to safeguard equality rights and protect diversity. Any law that would effectively target individuals who join GSAs — regardless or because of their sexual orientation or gender — jeopardizes their safety and sends the very clear message that Alberta is not a safe or welcoming place for LGBTQ. Creating an environment that undermines individuals’ rights to security and privacy, as suggested by the proposed measure, would foster bullying and harassing of LGBTQ students and, indeed, anyone who associates with them through the common activity of being a member of a GSA.

Finally, section 15 guarantees equality before and under the law, as well as the equal protection and benefit of the law without discrimination based on, for example, sexual orientation or age. The law proposed by parental rights proponents would clearly have a disparate impact on LGBTQ youth. It would either overtly or effectively target GSAs, whose membership is comprised mostly, if not entirely, of LGBTQ youth. By driving students away from GSAs, the proposed measure perpetuates prejudice against LGBTQ youth and denies them access to the beneficial support which GSAs provide. The effect is a law that widens the gap between a disadvantaged group of young people and the rest of society, and invites further discrimination towards members of GSAs. Such discrimination is both an unconstitutional violation of Canada’s Charter or Rights and Freedoms and a violation of Alberta’s Human Rights Act.

In addition, disclosing a child’s at-school activities without the child’s consent would breach the child’s rights under the province’s Freedom of Information and Protection of Privacy Act. FOIP states that “A public body [a school] may use personal information only to the extent necessary to enable the public body to carry out its purpose in a reasonable manner” and the Education Act is clear that the purpose of a school is education. Indeed, the Education Act states that “the educational best interest of the child is the paramount consideration in making decisions about a child’s education.” The Education Act does acknowledge that “parents have the right and the responsibility to make informed decisions respecting the education of their children,” however, participation in a voluntary student organization falls outside the parameters of education.

Furthermore, the Education Act is clear that staff members shall act as the liaison for voluntary student-established organizations but does not provide for staff to attend the meetings or monitor participation. Thus, monitoring students’ extra-curricular activities and club memberships would be beyond the scope of the Education Act; and revealing such activities, without the student’s consent, would be a breach of their privacy rights and a contravention, by the school, of the Freedom of Information and Protection of Privacy Act.

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