Changes in the Criminal Code: Employee rights in a time of legal chaos
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 workplace:
- 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 (“Smith”).
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 tenants.
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.
By Gerald Chipeur, Q.C. Partner, Miller Thomson LLP
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