E.1    Non-governmental health care facilities and practitioners who refuse to provide or collaborate in EAS/MAiD for reasons of conscience are not government actors in relation to those services and do not violate the Charter by refusing to do so. This is consistent with the Supreme Court of Canada decision in Eldridge and and the Supreme Court minority opinion in Chaoulli, and Carter, notwithstanding claims to the contrary.

Claim: Objecting NGHC facilities and practitioners are state actors

E.2    Professor Daphne Gilbert claims that hospitals and medical practitioners are government actors subject to the Charter of Rights and Freedoms, and thus cannot refuse to provide or at least facilitate services to which they object for reasons of conscience or religion.44 Her argument can be summed up as follows:

1) While the Charter does not provide a constitutional right to medical service, when the government undertakes to provide medical services, it must do so in accordance with the Charter.

2) The delivery of medical services has been assumed as an important de facto function of federal and provincial governments in Canada, so the delivery of medical services must conform to the Charter.

3) Hospitals are state actors and agents of public policy through which government provides medical services, and, as such, are subject to the Charter.

4) By analogy, physicians are state actors, subject to the Charter.

E.3    Her argument is elucidated in her analysis of three Supreme Court of Canada cases: Eldridge v. British Columbia,45 Chaoulli v. Quebec (Attorney General)46 and Carter v. Canada (Attorney General).47

Eldridge v. British Columbia (Attorney General)

E.4    Professor Gilbert's argument opens with the unanimous decision of the Supreme Court of Canada in Eldridge. The Court offered an exceptionally superficial summary of the history of government-hospital relationships that glossed over decades of developments in three sentences, observing that the medicare system “has come to resemble more closely a government service than an insurance scheme.”48 It described hospitals as “merely the vehicles” chosen by the legislature to deliver a “comprehensive social program,”49 so that hospitals “act as agents for the government in providing the specific medical services set out in the Act.”50 The Court continued, “In so far as they do so, hospitals must conform with the Charter”(emphasis added).51 Call this the Eldridge Principle.

E.5    According to Professor Gilbert,52 (and the BC Civil Liberty Association53) Eldridge established that hospitals are state actors subject to the Charter in providing medical services.54

E.6    Lacking a comparable case with respect to individual physicians, Professor Gilbert quotes University of Ottawa colleague Martha Jackman, who, while agreeing that Eldridge did not resolve this “difficult question,” asserted that the reasoning in the decision supports the conclusion that physicians are government actors.55

Chaoulli v. Quebec (Attorney General)

E.7    In Chaoulli the Supreme Court of Canada ruled in a 4/3 decision that two Quebec provincial statutes violated the province’s Charter of Human Rights and Freedoms. In a concurring opinion, Chief Justice McLachlin, Justice Major and Justice Bastarache went on to consider the impugned statutes in relation to the Canadian Charter of Rights and Freedoms. An important element in Professor Gilbert’s argument is drawn from their opinion, written by the Chief Justice.

The Charter does not confer a freestanding constitutional right to health care. However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter.56

E.8    Call this the Chaoulli Principle. It is consistent with Eldridge and with human rights jurisprudence to the effect that, if one offers a service, it must be offered equitably to everyone. It is also supported by emotionally-charged Canadian public opinion, which considers medical services to be tax-paid entitlements.57

Carter v. Canada (Attorney General)

E.9    Turning to the Carter decision, Professor Gilbert emphasizes the Court’s statement that “the Charter rights of patients and physicians will need to be reconciled,” neglecting to consider the comments by Justice Beetz cited by the Carter court. This point does not contribute substantively to her argument and has been addressed in Appendix “A” and "B".

Alleged Charter violations

E.10    Professor Gilbert observes that the government has established a scheme to provide medical services and argues that participants who are enlisted in the scheme are government actors subject to Charter scrutiny.58 Since the Canada Health Act requires government actors to “facilitate reasonable access” to “legal and publicly-funded medical services,” she concludes that government actors (including physicians) who refuse to provide or facilitate access to “government-funded public service (insured medical care)” potentially violate a patient’s Charter rights to equality (Section 15), life or security of the person (Section 7) and freedom of conscience (Section 2(a)).59

Response: Objecting NGHC facilities and practitioners are not state actors

Eldridge revisited

E.11    The problem is not with the conclusion actually reached by the Eldridge Court, but with Professor Gilbert’s erroneous claim that it reached a different (or additional) conclusion: that hospitals are government actors and have no choice but to provide or at least facilitate all legal, publicly funded services.

E.12    According to Eldridge, hospitals are “non-governmental entities,” not part of the fabric or apparatus of government.60 They become “government actors” only if they implement a specific statutory scheme or government policy or programme, and only “in so far as” they actually do so.61 Note that the context indicates that “activity” in such passages is virtually synonymous with “scheme” or “programme.” References to “particular” activities are intended only distinguish between activities that are part government “scheme” (e.g., health care delivery) and those that are not (e.g., internal hospital management).

E.13    The Court held that the delivery of medical services constituted a specific government activity, programme, scheme or policy, and that the government defined “the content of the service to be delivered and the persons entitled to receive it.”62 The Court defined the government objective as “guaranteeing access to a range of medical services.”63

E.14    On the other hand, the Court stated explicitly that no hospital was required to provide all such services,64 and that no hospital did so.65  Hospitals collectively (not individually) met the defined government objective and requirements of the Canada Health Act.

While no single hospital makes all of these services available, the net effect of the Act is to entitle every qualified person to receive, and to require hospitals to supply, a complete range of medically required hospital services.66

E.15    Correctly understood, Eldridge’s references to entitlements and specific services “required” by law were intended to establish only that there was a “‘direct and . . . precisely-defined connection’ between a specific government scheme and the hospital's impugned conduct.”67 They did not imply that every hospital was obliged to provide every legal, publicly funded service.

E.16    Also relevant is Eldridge’s description of hospital funding. The Court noted that the government only rarely directs hospitals to provide discrete services. Instead, it provides an annual lump sum payment to hospitals to cover the cost of services they actually do provide.68 This arrangement was probably made to protect the denominational character of faith-based hospitals as the medicare scheme was being established. Many of them would have refused to participate in a government “medical service delivery system” if they had believed that doing so would require them to violate denominational standards of conduct. Establishing this as a matter of historical record would require research not even contemplated in Eldridge. However, that the preservation of denominational integrity was an essential element in the development of medicare is suggested by two sources.

E.17    In 1968 the Catholic Hospital Association, in a submission to a parliamentary committee considering reform of the abortion law, stated:

We note that there is no question of [our hospitals] being obliged to change their present norms of conduct. On the contrary, proponents of a 'liberalized' abortion law admit that it should exempt those who object to being involved in procuring abortions.69

E.18    The second source is Justice Beetz writing in R. v. Morgentaler 20 years later. While asserting that Section 7 of the Charter “must include a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction,”70 he nonetheless stated that neither physicians nor hospitals could be compelled to participate in abortion.71 (See Appendix “B”). Justice La Forest, who wrote the judgement in Eldridge, wrote in dissent in Morgentaler and would have been well aware of this. That Eldridge makes no reference to this issue is yet another indication that it was simply not in play: that the references to “required” or specific services all reflect a focus on the relationship of hospitals to the “medical service delivery system” as a whole (vis-a-vis government), not the provision of a discrete service.

E.19    The real point in Eldridge was not that the hospitals had failed or refused to provide a specific treatment, service or procedure mandated by law. The real point was that hospitals, in so far as they are agents implementing a specific government scheme or programme (a medical service delivery system), have a duty under the Charter to ensure that the services they are providing are delivered in a non-discriminatory manner. The court concluded that the failure of the Medical Services Commission and hospitals to provide sign language communication when necessary for the effective delivery of medical services that they were already providing denied deaf persons of benefits available to hearing persons and was illicitly discriminatory.72

The Eldridge Principle (reformulated)

E.20    In so far as hospitals agree to deliver medical services as part of a government medical services scheme, they become government actors subject to the Charter of Rights, but only to the extent of their agreement with respect to that activity. In so far as they do not agree to deliver medical services, they are not government actors and not bound by the Charter.

E.21    The reformulated principle more precisely articulates the principle at the heart of Eldridge, does not modify the outcome, is compatible with the respect for institutional freedom of conscience and religion evinced by Mr. Justice Beetz in Morgentaler, and is consistent with what appears to be the actual history of the participation of denominational hospitals in medicare.

E.22    Note that even the reformulated principle does not prevent the state from expropriating denominational facilities, from enacting laws that compel them to provide specific services or make it impossible for them to function unless they do, or from withdrawing funding.

E.23    Non-governmental health care facilities and practitioners who refuse to provide or collaborate in EAS/MAiD for reasons of conscience are not government actors in relation to those services and do not violate the Charter by refusing to do so.

Chaoulli revisited

E.24    The Chaoulli Principle (E.7-8) simply restates the reasoning in Eldridge about the Charter obligations of government when it chooses to provide a benefit.

E.25    The minority concurring opinion of written by Chief Justice McLachlin agreed that the relevant Quebec legislation failed to “facilitate reasonable access to health care” under the Canada Health Act.73 Drawing primarily on R. v. Morgentaler, it identified delays or denials of services that would justify a Charter application and, presumably, the finding of a Charter violation by a court. They include delays or denials that

a) give rise to physical or psychological suffering or emotional stress;74

b) create additional risks to health, such as increased risk of complications and mortality;75

c) cause a “loss of control” by a patient over treatment, bodily integrity or his own health;76

d) deny patients timely health care for a condition that is clinically significant to their current and future health.77

E.26    However, the Chief Justice repeatedly made clear that denials or delays of service having such effects violate the Charter only if they are caused by the state.

By imposing exclusivity and then failing to provide public health care of a reasonable standard within a reasonable time, the government creates circumstances that trigger the application of S. 7 of the Charter (emphasis added).78

 The state has effectively limited access to private health care . . . This. . . results in delays in treatment that adversely affect the citizen’s security of the person. Where a law adversely affects life, liberty or security of the person, it must conform to the principles of fundamental justice. This law, in our view, fails to do so  (emphasis added).79

E.27    Charter violations occur, she wrote, when such problems arise because “the state has intervened in such a manner as to create an additional risk to health,” because of “mandatory procedures imposed by the state,”80 because of the state’s “legislative scheme,”81 because of “state interference” with bodily integrity and because of “state-imposed” psychological and emotional stress (emphasis added).82

E.28    However, according to the Eldridge Principle (reformulated), non-governmental health care facilities and practitioners who refuse to provide or collaborate in EAS/MAiD for reasons of conscience are not state actors. Thus, even if one finds the minority concurring opinion in Chaoulli persuasive (it is not authoritative), it does not follow that such objecting health care facilities and practitioners are violating the Charter.

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Notes

44.    Daphne Gilbert, “Let Thy Conscience Be Thy Guide (but not My Guide): Physicians and the Duty to Refer” (2017) 10:2 McGill JL & Health 47 [Gilbert].

45.    Eldridge v. British Columbia (Attorney General) [1997] 3 SCR 624 [Eldridge].

46.    Chaoulli v. Quebec (Attorney General) [2005] 1 SCR 791, 2005 SCC 35 [Chaoulli].

47.    Carter SCC 2015, supra note 2.

48.    Eldridge, supra note 45 at para 50. 

49.    Ibid.

50.    Ibid at para 51.

51.    Ibid.

52.    Gilbert, supra note 44 at 60—64

53.    British Columbia, Legislative Assembly, Select Standing Committee on Health, “Josh Paterson for the B.C. Civil Liberties Association” in Report of Proceedings (Hansard) (15 July, 2015), No. 17 at 272 (1140).

54.    The term “medical services” is used throughout to mean services that are delivered through the health care delivery system, whether or not they might objectively be considered to be “medical” in nature.

55.    Gilbert, supra note 44 at 62–63.

56.    Ibid at 64, quoting McLachlin CJ in Chaoulli, supra note 46 at para 104.

57.    Stuart Laidlaw, “Does faith have a place in medicine?” Toronto Star (18 September, 2008)(“In our society, we all pay taxes. . .to receive services. And if a citizen or taxpayer . . . are blocked from receiving legitimate services by a physician, we don’t feel that’s acceptable.”); Cf Chaoulli, supra note 46 at para 16 (Referring to the polarization of public opinion and emotional debate about public health care.)

58.    Gilbert, supra note 44 at 65.

59.    Ibid at paras 68–77.

60.    Eldridge, supra note 45 at 46 (i.e., hospitals as then constituted in British Columbia).

61.    Ibid at paras 42–44.

62.    Ibid at para 49.

63.    Ibid at para 51.

64.    Ibid at para 32.

65.    Ibid at para 49.

66.    Ibid.

67.    Ibid at para 51.

68.    Ibid at paras 10, 32.

69.    House of Commons, Standing Committee on Health and Welfare, Minutes of Proceedings and Evidence, Appendix "QQ": Brief submitted by the Catholic Hospital Association of Canada . . . on the Matter of Abortion. (8 February, 1968).

70.    Morgentaler, supra note 32 at 34.

71.    Ibid at 95.

72.    Eldridge, supra note 45 at para 80.

73.    Chaoulli, supra note 46 at para 105.

74.    Ibid at paras 118, 119, 122.

75.    Ibid at para 118.

76.    Ibid at paras 120, 122.

77.    Ibid at para 123.

78.    Ibid at para 105.

79.    Ibid at para 106.

80.    Ibid at para 118.

81.   Ibid at paras 119–120.

82.   Ibid at para 122.