The reasons for the ruling are confusing and rife with cognitive and legal dissonance
It’s fairly shocking, then, that the appeal was ultimately dismissed. Despite demonstrated harms to the patients and even a risk to patient lives, the majority of the B.C. Court of Appeal found that the government restrictions on private care are consistent with the principles of fundamental justice; a necessary sacrifice to preserve the sanctity of our public care system.
However, after noting this, the judges jump immediately to a balancing question, whether “the seriousness of the deprivation is totally out of sync with the objective of the measure.” This quote is taken from an important Section 7 case which found that prostitution-related prohibitions deprived rights in a way that was grossly disproportionate. Prohibitions against medically assisted suicide were also found to be grossly disproportionate.
This then required an analysis of whether the violations are justified under the Charter’s section 1 — the “balancing” clause which asks whether rights violations can be justified in a free and democratic society. The only precedent for such a finding involving a involving the right to security of the person is a 2016 Ontario Court of Appeal decision, R. v Michaud, which was denied leave by the Supreme Court of Canada.
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