Canadians have the right to associate and form organizations that are in keeping with a common view of the world. The lineage of this freedom goes back hundreds of years in British law. Thanks to a long heritage of philosophical and practical struggles, citizens of this land are blessed with the classical freedoms (or as Justice Rand famously described them, the “original freedoms”) of speech, religion, and inviolability of the person. They form the “primary conditions” of our “community life within” the legal order.
This is not a new concept – nor is it simply a legal concept, either: it is a part of our nature as humans. For good or ill, we are drawn to those of like mind. That is why we form groups. We congregate together for a shared purpose, whether it be political, religious, or social.
Such was the case when a group of citizens in Delta, British Columbia, came together to open a hospice. Many of the founders were motivated by their religious conviction that the dying – and their families – needed a place of refuge. Their faith prompted them to provide tangible comfort and care for the sick and grieving. They were also motivated by the religious belief that human life, even at its end, is inviolable. No one, in their view, should ever intentionally cause another human being to die since “God alone is to be the giver and taker of life.” In other words, euthanasia (or, as it is euphemistically called today, “Medical Assistance in Dying,” or MAiD) was not acceptable. The founding members, and others who joined them over the years, contributed tens of thousands of volunteer hours annually, and $8.5 million in donated funds to build a new Hospice building.
However, as has become increasingly common in our “progressive age,” the Society and its mission recently came to be vilified rather than applauded – all because they dared to insist that physicians who practice MAiD could not ply their trade in the facility. It was not enough that the hospice was willing to relinquish half of its public funding in order to operate privately in accordance with its beliefs. Its very existence had to be “corrected.”
Thus, a movement was born in 2019 to encourage the more enlightened to obtain a majority in the corporate membership of the hospice. In this way, the original mission and membership of the hospice would be circumvented and a new policy allowing for MAiD on the premises would be implemented.
To prevent this corporate takeover, the hospice leadership rejected membership applications by the hundreds of individuals who suddenly started submitting applications, as encouraged by a public online and social media campaign in favour of MAiD and against the democratically elected board. The rejections were challenged in court. On November 13, 2020, the BC Court of Appeal released its judgment in Farrish v. Delta Hospice Society, rejecting the hospice’s attempt to maintain its original moral views and practices on MAiD as being antithetical to the very definition of palliative care.
The Court of Appeal’s reasoning hung on the fact that there was nothing in the hospice’s constitution or bylaws expressly prohibiting MAiD (despite the fact that these documents were worded decades before MAiD was de-criminalized in Canada). Nor was there any explicit requirement for membership applicants to hold a certain moral position on the end of life. It did not bother the Court of Appeal that the mass recruitment of members was clearly (and publicly) designed to displace the original membership who opposed MAiD being performed at the hospice and to push through a pro-MAiD agenda.
“No doubt many longstanding members feel a sense of injury, given the stalwart support they have provided to the sick and dying over many years,” acknowledged the Court, admitting the patently obvious when it observed “it is due to their efforts that the Society has been able to build and operate its hospices.” However, the Court continued, “if particular religious or conscientious views were intended to be requirements of membership, that should have been made clear in the constating documents. In the absence of clear and specific provisions in the Constitution and Bylaws, it was not for the Directors to apply their own private criteria to keep out others who think differently than they. Like all societies under the Act, the Society is governed by majoritarian principles and is not frozen in time” (italics in original). It is ironic that the Court gave no credence to the fact that the Society attempted to amend the constitution to make its faith explicit, but was prevented because of the pro-MAiD campaign.
Indeed, if we know anything about the law and the moral virtues that have been systematically challenged over the last twenty years, it is that they are “not frozen in time.” Not only has the legal landscape changed since the Supreme Court of Canada’s Carter decision, our society has come to question the underlying beliefs that would have been assumed when the hospice’s constitution and bylaws were drafted three decades ago. As the saying goes, those views are now “on the wrong side of history.” When it comes to fundamental human life issues, we have apparently progressed well beyond religious tropes to a more advanced view of diversity, inclusion and equity.
Therefore, when reviewing the hospice’s stated purpose in its founding documents – “To provide compassionate care and support for persons in the last stages of living, so that they may live as fully and comfortably as possible” – the Court of Appeal could see nothing that would suggest any opposition to MAiD. But, of course, the Court was viewing such statements through the “not frozen in time” lens of the present, rather than the perspective of members of the hospice who were obviously stuck in the past. After all, it is hardly intuitive to suggest that documents written in the early 1990s should have expressly condemned a practice which, at the time, was a criminal offence. It is also rather curious that (other than referring to the proposed new bylaws which the Society was unable to enact) the Court made no mention of the Christian culture which founded and operated the hospice. Yet, this founding ethos was not deemed relevant or persuasive enough to hold back the new cultural currents in favour of MAiD. What is particularly troubling is that the Court of Appeal decision appears to grant the “enlightened” free reign to approach other “frozen” societies and infiltrate their operations by similar means of membership drives designed to wash away any offensive organizations.
These kinds of tactics reveal a rather dim view of those “original freedoms” that were once thought to form the “primary conditions” of our “community life within” the legal order. But, then again, such pronouncements of the law come from a “frozen in time” mindset. We now allow activists to romp through any organization that needs reforming – even if such an organization does not want reforming. The progressives know what is best for us all: they can impose the general will upon the non-compliant so that, as Rousseau would say, we may be “forced to be free.”
Each new, “progressive” development on fundamental issues of human life (such as abortion, death, marriage, and sexuality) is now a direct challenge for those organizations who maintain traditional moral principles. There is every indication that the BC Court of Appeal decision in the Delta Hospice case, while not binding across Canada, will have a persuasive effect on other, extra-provincial courts. Therefore, Canadian organizations that wish to avoid the same fate as the Delta Hospice Society will have to ensure that their founding documents – including their constitutions, articles of incorporation, and bylaws – are congruent with their moral and ethical principles. For example, if the organization is ethically opposed to having MAiD performed on its premises, then it must ensure its documents are properly amended, pursuant to competent legal advice, to conform to the organization’s position – and to make this position on MAiD a requirement of corporate membership. There are also other strategies to prevent takeovers, such as creating a “closely held” society where the board of trustees are also members of the organization.
Hopefully, such preparation will legally enable the respective organizations to refuse hostile membership applicants who seek to change the culture and position of the group. In many organizations the constituting documents require a super majority of the membership to revise or clarify the basic philosophical underpinnings of the organization. The BC experience clearly shows that pro-MAiD activists are highly competent and effective in achieving their goals. Therefore, it is important that organizations be robustly proactive in ensuring they are protected against such takeover maneuvers. Time is of the essence to make the necessary changes.
For Canada to be truly the diverse, inclusive, equitable country we claim to be, we must reject the tyranny of the majority when it comes to social issues. Our “original freedoms” allow us to have many different civic groups with many different civic goals motivated by religion or altruism. Not only do these groups enrich our nation, they speak to our human longing for community and connection. We cannot allow the concept “being of like mind with a common purpose” to freeze into a chilling notion of “being of one mind with one purpose.” We must be vigilant in protecting our freedoms.
This piece was originally published in The Lawyers’ Daily