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New Dates for Euthanasia Bill, Counselling Suicide Motion

The dates for the euthanasia bill that is before the House of Commons have been shuffled around. Bill C-384, which seeks to decriminalize euthanasia and assisted suicide, will now have its second hour of debate on December 1 at 5.30 pm and Second Reading vote in the House of Commons on December 2.

As for Motion M-388, which calls on the government to clarify that the Criminal Code s. 241 prohibition against counseling someone to commit suicide includes doing so over the internet, it received its second hour of debate on November  5 and will be voted upon on November 18.

The EFC has produced a number of resources to help you learn more and take action. Visit our Euthanasia webpage, view and download our short, informational video or learn more about Bill C-384. We have also produced a sample letter that can be sent to your Member of Parliament.


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A Physician’s Duty of Care to an Unborn Child

The Ontario Court of Appeal has stirred up debate about whether or not a physician owes a duty of care to a non-yet born child. In its 2008 decision in Paxton v. Ramji the court decided that a physician owes a duty of care only to the mother, not the child. However, two strongly-worded decisions out of British Columbia and an Ontario lower court have sought to set the record straight. (See below for a definition of ‘duty of care’)

A physician prescribed Mrs. Paxton a drug based on the belief that she could not become pregnant. Unfortunately, her husband’s vasectomy failed and Jaime Paxton was born with severe disabilities caused by her mother’s ingestion of the drug.

In its decision, the court raised social policy concerns which would negate any duty owed by the physician. For example, it found that if a duty of care was owed both to the mother and the child, it would interfere with the mother’s ‘right’ to abortion. (For those familiar with the law, you will know that there is no right to an abortion in Canada, only an absence of statutory law regulating care for the unborn.)

Justice Feldman, writing for all three judges, stated,

there is no settled jurisprudence in Canada on the question whether a doctor can be in a proximate relationship with the future child who was not yet conceived or born at the time of the doctor’s impugned conduct…

The court found that there were no existing “analogous” negligence categories or similar circumstances where a duty of care had been previously found to be owed by a physician. This reasoning justified the need to re-evaluate the case of physician-owed duty of care and the court’s conclusion that it could not possibly be owed.

I disagree. As did Justice Tausendfreund of the Ontario Superior Court of Justice in his October 2009 decision in Liebig v. Guelph General Hospital.

In Liebig, the court faced the question of whether Kevin Liebig, who had suffered brain damage during his delivery, had a right to a negligence claim against the hospital staff. Justice Tausendfreund found that he did have such a right and that "[t]he duty to both mother and fetus in the maternal-fetal care scenario has long been established in Canadian jurisprudence." 

This decision is encouraging to those who recognize that life should be protected through all its stages, from conception until a natural death. Along with the Ediger case, discussed below, it is a jurisprudentially sound decision that takes the Paxton decision to task.

In fact, after completing a review of “the legion of reported decisions…on the duty owed to both mother and fetus in a maternal-fetal care situation”, Justice Tausendfreund concluded that “the Court of Appeal [in Paxton] could surely not have meant that the maternal-fetal care scenario when referring to “the proposed duty” as “a novel one.”

Justice Tausendfreund also notes that the Supreme Court of Canada confirmed that a child may sue for injuries caused before birth that results in damages as of the child’s date of birth (Winnipeg Child and Family Services v. G. (D.F.), [1997] 3 S.C.R. 925).  In 1933, the Supreme Court unequivocally stated,

…it is but natural justice that a child, if born alive and viable, should be allowed to maintain an action in the courts for injuries wrongfully committed upon its person while in the womb of its mother.

Otherwise, the consequences would be dire: a child born with severe disabilities caused by a third party could not sue for compensation for necessary future care. Even Justice Feldman in Paxton acknowledges this problem.

This brings us to the March 2009 Supreme Court of British Colombia decision Ediger v. Johnston. In Ediger a physician was found to owe a duty of care to a child he delivered. The physician had attempted a forceps delivery without being properly prepared for a Caesarean delivery if the initial procedure failed. As a result of the delay, Cassidy Ediger suffered severe and permanent brain damage.

This B.C. case was decided subsequent to the Paxton case from Ontario.  All parties in Ediger submitted arguments to the court on the potential implications of Paxton.

Though the B.C. court stated that “the arguably uncertain state of the law in this specific area” made the matter challenging, it also made clear that the binding case in this matter was Cherry v. Borsman, a 1990 B.C. Court of Appeal decision. Accordingly, in Ediger the court found that, as long as the child is born alive, “a physician owes a duty of care to a fetus, and a duty not to harm the fetus, if he or she should fail in meeting the duty of care to the mother.”

Justice Holmes also persuasively addressed the social policy concerns raised in Paxton; firstly, that a physician would be put in a position of conflicting duties to the mother and unborn child and secondly, that it would affect a woman’s ‘right’ to abortion. She stated that the two concerns are addressed by the fact that, in law, mothers do not owe a duty of care to their unborn children. This was determined by the Supreme Court of Canada in both the Dobson and Winnipeg Child and Family Services cases.

Justice Holmes clarified that to recognize a duty of care to an unborn child would not acknowledge, “in the fetus a separate legal status at that stage, which might therefore conflict with the mother’s autonomy because…any legal rights accruing as a result of a duty of care owed before birth only crystallizes at the time of the fetus’s live birth.” She also noted that since the Supreme Court of Canada established that a mother can make medical decisions without potential liability to the fetus (Tremblay v. Daigle), both policy concerns are addressed.

Justice Holmes also makes an important distinction between the case before her and cases where the physician counselled the female patient prior to conception, such as Paxton,

…the reasons as a whole make clear that at the time in question, the children were not only unborn, they were unconceived. It is indeed difficult to see how the doctor could have owed them a duty of care, because they were not in existence.

Lastly, Justice Holmes found that if Paxton was understood to find that a physician does not owe a duty of care to a conceived, unborn child that the decision would run contrary to existing case law (you’ll find a long list of cases at paragraph 200 of the decision) and it would contradict the leading Canadian text on the matter, Legal Liability of Doctors and Hospitals in Canada which states,

One significant aspect of obstetrics that distinguishes it from other areas of medical practice is that the physician owes a duty of care of two patients simultaneously: the expectant mother and her fetus…

Due primarily to Paxton, there is discussion about some lack of clarity in this area of law. The nearly 20 year old B.C. Court of Appeal Cherry decision runs contrary to the recent Paxton decision. To clarify the law, one of two things would need to occur; the legislature could establish the law on this point (as the government of Ontario did with s. 66 of the Family Law Act) as suggested by Justice Feldman, or the Supreme Court of Canada could agree to hear a case on the matter, which it has refused to do until this point.

In the interest of Canadians generally – and more specifically pregnant women, their unborn children and physicians – this legal ‘uncertainty’ cannot be permitted to continue. In the words of Voltaire, “Let all the laws be clear, uniform and concise.”

(Point of clarification: A ‘duty of care’ is created in certain relationships where one party has a duty to act a certain way, or refrain from acting carelessly towards another. For example, a school will owe a duty of care to a child in their care during school hours. If the child is hurt by slipping on a patch of ice in the school yard that should have been salted, the parents could potentially sue the school board.)


uVic Sets Great Free Speech Example for Student Unions & University Administrations

The last year or so has provided witness to disappointing behaviour by student unions and university administrations across our free and democratic nation. They have chosen to deny freedom of expression rights to their pro-life students.

A few weeks ago, at McGill University, the Student Society of McGill University passed a motion to censure a pro-life presentation organized by the Choose Life student club. The motion also demanded that McGill’s administration cancel the event. Thankfully, the Deputy Provost refused to do so, stating that the group had a right to discuss the issue freely.

As the presentation began, a few dozen students interrupted the speech by loudly chanting childhood favourites like "the Hokey Pokey." They then took over the stage, blocked the screen and snatched the speaker’s notes prior to campus security arriving on the scene. Two students were arrested, though the heckling was permitted to continue until the end of the presentation.

Thankfully, the administration has since spoken out against the protest, stating that it “disrupts the free expression of ideas on campus.” (You can watch footage of the disturbing events here

This isn’t entirely dissimilar to what happened at St. Mary’s University last fall, when pro-life advocates were shouted down during an event. Or, what has taken place on several other university campuses across the country.

Now, to the good news.

Last week, the pro-life student club at the University of Victoria, Youth Protecting Youth, held a well received, and well attended, abortion debate with approval of both student union and university administration. So many students attended, far more than the 200-seat capacity, that the speakers offered a second session to those who were forced to leave the initial presentation due the fire code restrictions.

Stephanie Gray from the Canadian Centre for Bioethical Reform debated Professor Dr. Eike-Henner Kluge, a uVic philosophy professor and bioethicist.  The debate, which addressed the issue of personhood, was reported as being respectful and civil, with Dr. Kluge stating that he found it “deplorable” that his colleagues had refused to participate. A video of the incredibly successful event can be watched here.

Free expression on a university campus. Academic discussion of a controversial issue. This shouldn't really be blogworthy behaviour in a free and democratic Canada, should it?


Nameless, faceless, free to counsel suicide?

Yesterday's Ottawa Citizen delivered the disturbing news that a 47 year old man was not going to face charges for encouraging Nadia Kajouji, an 18 year old freshman at Carleton University, to commit suicide. The facts are disturbing. The Minnesota man pretended to be a 28 year old woman who encouraged Kajouji to take her life in front of a camera online in a proposed suicide pact. When the 18 year old student would not participate, the pact was extended to a set date and time although it was not to be carried out online. Ottawa police decided not to pursue charges because they were uncertain as to whether or not the man had sufficient influence in the young woman's decision to commit suicide.

We've worked with Harold Albrecht (MP, Kitchener-Conestoga) to support the current motion M-388 before the House of Commons seeking to clarify that section 241 of the Criminal Code covers just such circumstances. There are many who have described the motion as unnecessary, arguing that the law is clear. But, it appears those charged with enforcing the law do require some direction from those responsible for establishing the law.

Section 241 is simple:

Every one who

(a) counsels a person to commit suicide, or

(b) aids or abets a person to commit suicide,

whether suicide ensues or not, is guilty of an indictable offence ...

There are no provisions that exclude those who, from outside our borders, counsel  someone to commit suicide within our borders. In fact, we have a very workable extradition treaty with the U.S.

There are no provisions that exempt middle-aged male nurses who are fathers of two and pretend to be a young woman while meeting a young woman considering suicide in a chat room from facing prosecution.

Nor are there provisions that exempt someone from prosecution in Canada because he is under investigation in his home state for having offered similar advice to others within the borders of his own country.

The law is clear, or some say it is. If you counsel someone to take their own life, "whether suicide ensues or not," you have committed a crime in Canada and are subject to criminal charges. In this instance, the chatroom log is clear that suicide was counselled and the end result is, sadly, also clear. Nadia Kajouji's body was found in the Ottawa River in April 2008.

Nadia Kajouji's mother tape recorded her meeting with Ottawa police. She turned the tape over to the Ottawa Citizen. The Citizen reported the contents of the tape. The Globe and Mail today reported that the decision on pursuing charges is not final as the matter has not yet been reviewed by the Crown Attorney's office.

In the midst of this extremely sad and messed up situation we give credit to Harold Albrecht for seeing clearly what was unclear to law enforcement. Let's hope the direction of Parliament and the opinion of those who think section 241 sufficiently clear will line up to allow this law to apply in situations such as this. If not, let's change the law so that it does. Unfortunately, we live in a world where those contemplating suicide can seek advice from the nameless, faceless at the other end of a fibre optic cable who would prey on their weakness.


New EFC Human Trafficking Resource Now Available!

The EFC's CFPL has developed a great new resource - the [Activate] series, and we're excited about it!

This first booklet in the series, Not So Ancient: Human Trafficking and Modern Slavery, is a resource for youth and adults seeking to live out their faith in a tangible and impacting way. (I'm holding a copy hot off the press in the photo at right.)

Readers will learn to recognize the many forms of human trafficking, realize that human trafficking is encroaching across Canada, and begin to understand God’s heart and desire to see His children take action in a way that “activates” God’s mission and call in our lives. This resource is for those who are tired of the status quo and are ready to live out God’s call for justice.

This is a great resource for youth groups and discussion groups.

To purchase your copy, visit our website.

You can view our human trafficking video here.



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