Available in Audio Format:

In 2023, Samantha O’Neill, a 34-year-old woman with Stage 4 cervical cancer, sought “medical assistance in dying” (MAiD). At the time, she received treatment at St. Paul’s Hospital in Vancouver. St Paul’s is operated by Providence Health Care, a Catholic organization. Because Providence prohibits euthanasia on its premises, O’Neill moved to a nearby hospice to be euthanized. Her family later said the move caused her significant physical discomfort and emotional distress. To ease her discomfort, she was sedated during the transfer process, causing her to lose consciousness. She never regained consciousness before being euthanized. 

The plaintiffs 

O’Neill’s parents – together with MAiD provider Dr. Jyothi Jayaraman and the advocacy organization Dying With Dignity Canada – filed a lawsuit against the Province of British Columbia, Providence Health Care, and Vancouver Coastal Health. The plaintiffs argue that the province’s and regional health authority’s policies allowing faith-based hospitals to not offer euthanasia violates the Charter of Rights and Freedoms. The case has drawn plenty of media attention. The outcome will have significant implications for faith-based healthcare institutions across the country.

The Charter challenge 

The plaintiffs claim the policies permitting faith-based hospitals not to offer MAiD violate freedom of conscience and religion because they effectively restrict access to MAiD based on religious beliefs that patients, like O’Neill, do not share. The plaintiffs contend that freedom of conscience and religion protects not only the right of individuals to hold and live out their beliefs, but also the right to make personal medical decisions without having others’ religious beliefs imposed on them.

The plaintiffs argue that it is not just patients’ religious and conscientious rights that are infringed. They assert that the rights of MAiD providers are infringed too. The plaintiffs say that Providence’s policies force Dr. Jayaraman to request patient transfers she considers ethically objectionable. In the plaintiffs’ view, compelling MAiD providers to conform their professional conduct to religious beliefs they do not share interferes with their freedom of conscience and religion. 

The plaintiffs further argue that the state has a duty of “religious neutrality” in delivering publicly funded health care. By allowing religious beliefs to prevent access to a lawful medical service within publicly funded institutions, they say, the government has failed to maintain neutrality.

The plaintiffs also allege violations of section 7 of the Charter, which protects the rights to life, liberty, and security of the person. They argue that the policies in question infringe the right to life by pressuring patients to seek MAiD earlier than they otherwise would to avoid the risks and potential suffering associated with transferring out of a hospital that prohibits MAiD. They also contend that such transfers may expose vulnerable patients to physical pain, psychological distress, and loss of dignity, thereby infringing security of the person. Finally, they argue that prohibiting MAiD within certain facilities interferes with patients’ autonomy over the timing, location, and circumstances of their deaths, infringing liberty.

The weaknesses in the plaintiffs’ Charter challenge

Despite the plaintiffs’ claims, significant legal hurdles remain.

First, Canada’s highest court has said that the Charter does not create a right to government funded health care. In Chaoulli v. Quebec (Attorney General), the Supreme Court made clear that governments are not constitutionally required to provide or fund particular medical services. So even if someone is legally eligible for a medical service, including MAiD, that does not automatically mean the government must pay for it or make it available in every hospital.

A second major hurdle for the plaintiffs is the question of whether the Charter even applies. While the provincial government and Vancouver Coastal Health are subject to the Charter, Providence Health Care is not government. The Charter applies to government, not private institutions.

But the plaintiffs argue that Providence Health Care is subject to the Charter insofar as it delivers medical services to the public as part of a government program (i.e. public health care). The Supreme Court’s decision in Stoffman v. Vancouver General Hospital (1990) cautions that delivering medical services to the public does not make a hospital subject to the Charter. The plaintiffs may have a difficult time persuading the court to think differently. 

Even if the focus shifts away from Providence and onto Vancouver Coastal Health and the Province of British Columbia – both of which are plainly subject to the Charter – the plaintiffs’ case still faces difficulty. Their core claim appears to be that if the government funds a hospital as part of the public health system, it must require the hospital to permit MAiD on site. But that position does not sit comfortably with how the Charter has traditionally been interpreted.

As the Supreme Court explained in Gosselin v. Québec (Attorney General) and Baier v. Alberta, sections 2 and 7 generally protect individuals from government interference. They do not require the state to provide services. The Charter, for example, prevents the government from substantially obstructing religious practice or one’s personal medical decision-making. It does not oblige the government to financially support churches or fund a person’s medical treatment or ensure quick and easy access to medical services.

The plaintiffs may say they are not asking the court to force the government or the hospital to provide MAiD. Rather, they may say they want the court to strike down what is effectively a prohibition on allowing MAiD providers to access (and kill) patients in a religious facility.

But in practice, lifting the prohibition would still require the hospital to devote much time and resources to facilitating MAiD – coordinating with providers and ensuring staff availability if there are complications.  More fundamentally, it would run directly contrary to the hospital’s ethos to become a place where patients’ lives are intentionally ended, even if hospital staff are not performing the procedure.

What happens if the plaintiffs win?

If the plaintiffs succeed, the implications for religious freedom in health care could be significant. Faith-based institutions that object to MAiD may not only be required to permit patients to be killed on their premises, but also to coordinate with MAiD providers, facilitate access to patients within their facilities, and ensure staff are available should complications arise during the MAiD procedure.  Faced with such requirements, some faith-based providers might question whether they can continue operating.

But the plaintiffs face some legal hurdles, as discussed above. Existing jurisprudence raises serious questions about whether Providence’s policies are even subject to Charter scrutiny. And by characterizing the province’s permissiveness toward faith-based hospitals as a violation of sections 2 and 7, the plaintiffs ask the court to extend those rights beyond their currently established scope.

Ultimately, the litigation appears to be part of a broader political effort to invite the judiciary to expand MAiD access without the need to rely on elected officials. Hopefully, the court in British Columbia will decline the invitation.