In 2016, employees may be faced with requests from employers or
from others whom the employees serve to participate in activities
that are prohibited by the Criminal Code. There are
two areas, in particular, of potential legal conflict in the work
assistance in suicide;
use of medical marihuana.
Physician Assisted Suicide
On January 11, 2016, the Supreme Court of Canada considered two
questions related to assistance in suicide. First, will
physician assistance in suicide remain illegal while Parliament
debates and enacts a new regulatory regime for physician-assisted
suicide? Second, will Quebec physicians be allowed to assist
their patients in committing suicide at an earlier date than
physicians in other provinces? See Carter v. Canada,  1 SCR 331
("Carter"). On January 15, 2016, a 5
to 4 majority of the Supreme Court of Canada issued an order
extending the stay, but allowing physician assisted suicide where
approved by order of a superior court judge or under the assisted
suicide legislation enacted in Quebec.
Notwithstanding this latest order from the Supreme Court of
Canada regarding their decision in Carter, it will remain
illegal for a physician, or any other person, to administer a
noxious thing (including a lethal injection). See section 245
of the Criminal Code. In addition, it will remain
illegal for persons who are not physicians to counsel or aid in
suicide. See section 241 of the Criminal Code.
On June 11, 2015, the Supreme Court of Canada issued a decision
that led the Government of Canada to make regulatory changes to the
laws governing the use, possession and production of medical
marihuana. Now it is legal for individuals to use both
marihuana leaves and cannabis oil. See R. v. Smith,  2 SCR 602
Healthcare providers and landlords faced with marihuana use on
their premises are presented with difficult choices. There is
no easy and reliable means to determine whether a person is legally
entitled to possess marihuana leaves or cannabis oil for medical
purposes. If the healthcare provider or landlord is wrong in
their assessment of the medical and legal justification for the
possession and use of marihuana, they face sanctions under the
Controlled Drugs and Substances Act, SC 1996, c. 19 and,
even worse, potential forfeiture of real estate under provincial
civil forfeiture laws. See R. v. Montague, 2014 ONCA 439, where
the Ontario Court of Appeal (the Supreme Court of Canada refused
leave to appeal) upheld the forfeiture of an apartment building to
the Government of Ontario because of illegal marihuana use by
tenants. The forfeiture order was upheld notwithstanding the
fact that the Government of Ontario Landlord and Tenant Board
refused to allow the landlord to evict the law-breaking
EMPLOYMENT LAW RULES
Where an employee is asked or ordered by an employer to
participate in an activity that an employee honestly and reasonably
believes to be a crime, an employee may decline without risk of
sanction by the employer. Just as importantly, an employer
advised by an employee of potential conflict with the criminal law
is wise to avoid conflict and address or accommodate the
employee's concerns. This is because employees are only
required to obey reasonable and lawful orders. See the
decision of the Court of Appeal of British Columbia in Stein v. BC Housing Management
Commission, 1992 CanLII 4032, for example.
Employers should also be sensitive to ethical or religious
objections on the part of employees when faced with a request to
facilitate criminal activity or potentially criminal
activity. The Supreme Court of Canada made it clear in
Carter that "a physician's decision to
participate in assisted dying is a matter of conscience and, in
some cases, of religious belief." Under human rights
legislation across Canada, employee decisions based upon conscience
or religion must be reasonably accommodated.
CONCLUSION AND RECOMMENDATION
In light of the uncertainty in the law, no employer should
consider itself compelled to allow the use of medical marihuana or
assistance in suicide on its premises. Instead, both
employers and employees should consider seeking legal advice before
permitting with or carrying out any of these activities.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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