When the provincial government funds healthcare facilities operated by religious organizations which deny Albertans access to medical procedures prohibited by that religion, for example, abortion, emergency contraception (such as the morning-after pill) and medically-assisted dying, it violates rights and freedoms guaranteed by the Canadian Charter. In 21st century Canada, those violations cannot be demonstrably justified. Thus the public funding of those healthcare facilities should be struck down as unconstitutional.
Funding religious healthcare facilities violates sections 2, 7 and 15 of the Charter. Let’s take these, briefly, one by one. Section 2(a) guarantees freedom of conscience and religion. By allowing religious healthcare facilities to deny certain medical treatments for religious reasons, the government is sanctioning the imposition of a certain set of religious beliefs on people who do not subscribe to that religion, or indeed perhaps to any religion at all, for we must remember that Canadian courts are clear: freedom of religion in Canada includes the right to be free of religion, if that is your choice.
Section 7 of the Charter protects Canadians’ right to life, liberty and security of the person. By funding a religious organization that denies certain medical procedures, not for medically relevant reasons but for medically arbitrary reasons, the government is violating Albertans’ security of the person.
Section 15 (1) of the Charter ensures that Canadians are free from discrimination by the government. By funding religious groups to run healthcare facilities that are supposed to serve all Albertans, the government is discriminating against all those Albertans that do not subscribe to those religious beliefs.
It’s true that Charter violations can be justified under section 1 of the Charter. But section 1 of the Charter specifies that in order to be justified, violations can extend only “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” So can the public funding of institutions that impose one religion’s beliefs on people who do not follow that religion possibly be “demonstrably justifiable” in a free and democratic Canada?
The answer must be “no” because the Canada of today is very different from the country it once was. From its founding as a country in 1867 through the Second World War, Canadian society and politics were dominated by the two founding European colonial peoples – the French and the British. For examples, Indigenous people were hugely disrespected and regularly tormented by government in a wide variety of ways, and immigration policy was unabashedly racist.
Significant social change started in the early 1900s, for example, when women got the right to vote. But it wasn’t until after WW II that human rights law in Canada started to change significantly. The culmination of human rights reform was addition of the Charter of Rights and Freedoms to the Canadian constitution in 1982.
Today, Canada has one of most highly diverse populations in the world. The legacy of British-French domination is still present – in many ways, it is still strong – but is much weaker than before. Powerful positions in government, business and the community more broadly are now held by a (not wide enough but) much wider range of people. Indigenous people are gradually gaining the respect and rights that have been denied them for so long and people from all over the world flock to Canada in search of better lives.
So whatever was considered permissible in Canada’s earlier days, it is not now constitutional for a government in Canada, including the Alberta provincial government, to fund an organization that does not respect Canadians’ rights under the Charter.
This isn’t a radical claim: Canadian law is supposed to evolve over time to reflect new social realities. The Supreme Court of Canada has consistently ruled that “our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.” These are the words of former Chief Justice McLaughlin in the Reference Re Same Sex Marriage in 2004.
It is also important to appreciate that, had those who drafted the Charter and advocated for its adoption wanted to protect religious healthcare facilities from a Charter challenge, they could have done that in the same way they insulated separate schools from Charter challenges with Article 29:
Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.
This means that Charter arguments based on freedom of conscience or discrimination cannot be used to declare separate schools unconstitutional.
But the framers of the Charter did not do the same regarding the funding of healthcare facilities. We can therefore conclude that our Charter rights can be applied to strike down the public funding of religious healthcare facilities.
As Ryan Hoskins says in his Alberta Views article “Holy Healthcare, Our religious hospitals problem”: “If we were to redesign the healthcare system today, we wouldn’t allow Catholic [JK: or any other religious] administration to continue… We now have a much cleaner separation of church and state… It’s the political norm [now] that state institutions be even-handed [neutral] about religions. It’s time to change course.”
Janet Keeping, Member, Rocky Mountain Civil Liberties Association.