Fr. Tony's case - NOTICE OF CONSTITUTIONAL QUESTION

Fr. Tony has every intention of taking his case all the way to the Supreme Court if necessary. He believes he is doing God's work in standing up against abortion. He's totally convinced of this.

He is very happy that there are people out there who support his case. He is very thankful to everyone who has made a donation and/or who is praying for him.

For someone who has been protesting abortion in a very public way, for thirty years now, this is the logical conclusion to what Fr. Tony's been doing all along. Making a public stand against abortion. To tell the government that abortion is wrong. To use free speech as the tool of choice.

The government continues to do its best in quashing freedom of speech rights. Fr. Tony is having none of it. He will protest until he physically can't protest anymore. Fr. Tony is not going away.

For more information on Fr. Tony's case, please see his lawyer's letters (NOTICE OF CONSTITUTIONAL QUESTION) to the Crown Prosecutor Ontario Court of Justice – Provincial Offences Court and the The Attorney General of Ontario on behalf of Fr. Tony.

I understand some people haven't seen these letters which explain Fr. Tony's case, which is why I am republishing them now.

The Carter decision and what it says

What does Carter really say about terminal illness?

by Barbara Maloney

The federal government’s Bill C-14 has been loudly criticized for limiting “medical assistance in dying” (MAID) to those whose death is “reasonably foreseeable.” Critics say that in Carter the Supreme Court did not limit “physician-assisted death” (PAD) to those with a terminal illness and to do so in C-14 is unconstitutional. They point out that Kay Carter, mother of one of the plaintiffs, was not terminally ill and so would not qualify for MAID under Bill C-14.

However, importantly, the Supreme Court was silent on whether Kay Carter would have qualified for PAD.

That’s because Kay Carter’s right to seek PAD was not at issue in Carter. Gloria Taylor’s right was. The court expressly stated it was pronouncing only on the rights of Ms. Taylor and “people like Ms. Taylor” and only in the “factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.”¹

And Ms. Taylor did have a terminal illness.

(Kay Carter’s daughter, Lee Carter, challenged the law prohibiting assisted suicide as a violation of her right to liberty, it putting her at risk of criminal prosecution for assisting in someone else’s suicide. The Supreme Court did not deal with this issue but confined its decision “to the rights of those who seek assistance in dying, rather than of those who might provide such assistance.”² )

Consequently, whether or not Kay Carter would be eligible for MAID under bill C-14 is irrelevant to a discussion of the bill’s constitutionality.

What is relevant is whether or not the Supreme Court intended that PAD must be available to those who were not “terminally ill” / at the “end of life” (however imprecise those terms may be). While the court did not explicitly state that PAD may be restricted to those with a terminal condition, it is reasonable to conclude that the court implied this, based on the trial judge’s ethical analysis of PAD. The trial judgment is of particular relevance because the Supreme Court relied on it so heavily and unequivocally affirmed it.

The trial judge, Justice Smith, said that a central question in this case “is whether it is ethical for physicians to provide [PAD].”³ The ethical debate is relevant, she said, because “both legal and constitutional principles are derived from and shaped by societal values.”⁴

Her lengthy ethical analysis was based on a comparison between PAD and existing end-of-life practices which are lawful, such as withdrawal or refusal of life-sustaining /life-saving treatments. She was persuaded by the ethicists who said there is “no ethical distinction” between PAD and these other “end-of-life practices whose outcome is highly likely to be death.”⁵ 

It is important to note that Justice Smith’s ethical analysis involved only a category of people who would, without treatment, die. In short, her ethical analysis and the analogy she relies on are only applicable to people at or near the “end of life.” One cannot, therefore, assume that Justice Smith (or the Supreme Court) would have applied the same ethical analysis or arrived at the same conclusion with respect to people who were not terminally ill.

It is entirely reasonable to assume that the Supreme Court was considering only that category of patients whom Justice Smith was considering in her ethical analysis, that is, those who, but for a life-sustaining/life-saving treatment, would die.

A further hint that the Supreme Court was contemplating only terminal/end-of-life patients can be found in its discussion about the types of treatments that those with a “grievous and irremediable medical condition” are currently allowed to request or refuse: the same treatments applicable to end-of-life patients that formed the basis of Justice Smith’s ethical analysis.⁶

Thus a reasonable reading of the Supreme Court’s Carter decision permits Parliament to restrict MAID to those who are terminally ill /nearing the end of life. Parliament could choose, of course, not to require terminal illness, but requiring it would not be contrary to Carter.

Barbara Maloney is a freelance writer living in Nepean, Ontario.

1 Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, paras. 126 and 127.

2 Ibid. para. 69.

3 Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII), para 164.

4 Ibid. para. 317.

5 Ibid. para. 335

6 Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, para. 66.

Why the Ontario Government had to hide abortion statistics

"In my view, to deny access to generalized, non-identifying statistics regarding an important public policy issue such as the provision of abortion services would have the effect of hindering citizens' ability to participate meaningfully in the democratic process and undermine the government's accountability to the public." 
                                   Office of the Information and Privacy Commissioner, 2000

I think I've finally figured out why the Ontario government refuses to answer my questions about why they hide abortion information. It is because Kathleen Wynne et al cannot use the reason that not releasing the information is to protect the safety of a person or building. That was the argument the Ministry of Health used in 2000. And the Ontario Information and Privacy Commissioner didn't buy it.

So this time around Kathleen and friends simply changed the law to exclude abortion information completely from the prying eyes of nosy citizens. And while the opposition Conservatives snoozed, the Liberals quietly changed the law.

Pretty ingenious really.

Of course we know the government's real reason was pure politics: they don't like pesky pro-lifers asking them about abortion.

You see, in 2000, the Ontario Ministry of Health tried to withhold information when a (presumably pro-life) group requested abortion billings through a Freedom of Information request. The group asked for:

"the number of therapeutic abortions billed to OHIP in each of the years 1993 to 1997"

The Ministry refused to release the information. It defended its actions on the grounds that pro-lifers are violent:

"The Ministry submits: [B]ased on past and continuing events, there is ample evidence to support a reasonable expectation that disclosure of the requested information could endanger the life or physical safety of various individuals as well as endangering the security of the facilities where abortions are performed, and, in the course of violent demonstrations, the security of public buildings such as the Queen's Park legislative or other government buildings. 

Harassment has been, and remains, a reality in Ontario for those involved in the abortion debate from a Pro Choice perspective [notice the bias here against pro-lifers. Because no, no, no, pro-choicers are never violent]. Since 1991, this harassment of patients, providers, staff and their family members and neighbours by Pro Life activists has, in some instances, escalated into violence...

...The context in which these and other violent events have occurred is one liable to be fed by the slightest provocation. Even data reflecting merely the total number of abortions performed in Ontario on an annual basis, or the total number of providers performing them, is at risk of being manipulated and presented to the public in the most inflammatory way possible. 

The ministry is not suggesting that the appellant may manipulate the data in this way. We are merely pointing to the realistic conclusion that a disclosure to the world@ (see Order M-96 and others), by whatever means, is much more than hypothetical in the circumstances of this Appeal. It cannot be ignored that the appellant is a member of the media, from whom wide public circulation of the requested information can be expected. The eventual recipients of the information would doubtless include many individuals and groups on both sides of the abortion debate, a number of whom may elect to employ acts of harassment, vandalism and/or physical violence against persons with whom they disagree or of whose behaviour they deeply disapprove. This is why disclosure of the particular records in this Appeal, unlike those at issue in Order P-1545, would alter the current situation in a way sufficient to raise the reasonable expectation of the harms in clause 14(1)(e) and (i).  

But the Office of the Information and Privacy Commissioner did not agree with the Ministry's arguments in its decision, and ordered the Ministry to release the abortion information:

"Pursuant to a request under a freedom of information statute, the Supreme Court of Illinois in Family Life League v. Department of Public Aid, 112 Ill. 2d 449 (1986) ordered disclosure of (among other information) the numbers of abortions performed by providers, rejecting arguments that disclosure would lead to threats and harassment. 

Like the B.C. and Ontario cases, the U.S. authorities suggest that generalized statistical data regarding abortion services should be accessible under freedom of information legislation. The information at issue in this appeal consists of general statistical information on a province-wide basis. This information cannot be linked to any individual facility or person involved in the provision of abortion services. I do not accept that the sequence of events, from disclosure to the harms outlined in sections 14(1)(e) and (i), could reasonably be expected to occur. While I accept the Ministry's submission, supported by ample evidence, that individuals and groups on both sides of the abortion debate have been subjected to threats, intimidation, and acts of violence, in my view, any link between disclosure and the harms in these sections is exaggerated. The evidence before me does not establish a reasonable expectation of endangerment to the life or physical safety of any person, or to the security of a building, vehicle or system or procedure established for the protection of items within the meaning of sections 14(1)(e) and (i) of the Act. 

This finding is in keeping with a fundamental purpose of the Act, as recognized by the Supreme Court of Canada: 

"The overarching purpose of access to information legislation, then, is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry . . Rights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable . . . [Dagg v. Canada (Minister of Finance) (1997), 148 D.L.R. (4th) 385 at 403, per La Forest J. (dissenting on other rounds)]. "

In my view, to deny access to generalized, non-identifying statistics regarding an important public policy issue such as the provision of abortion services would have the effect of hindering citizens' ability to participate meaningfully in the democratic process and undermine the government's accountability to the public." (Emphasis added)

As we know from my own attempts to get abortion information, we have never been given a reason why Ontario government changed the law. Of course they could never say it is because of violence, because the IPC already ruled against that argument in 2000.

The government could never use that argument again, because clearly they would be overruled.