Category: Law

Project intervenes in the Supreme Court of Canada

News Release

Protection of Conscience Project

Today the Protection of Conscience Project joined the Catholic Civil Rights League (CCRL) and Faith and Freedom Alliance in a joint intervention at the Supreme Court of Canada in Carter v. Canada, a case seeking the legalization of euthanasia and physician assisted suicide.

The appeal necessarily involves the issue of freedom of conscience for healthcare providers.   An indeterminate number of healthcare providers consider killing patients or assisting in suicide morally or ethically abhorrent. Their views  are consistent with the current Canadian legal framework, which would be fundamentally changed if euthanasia and assisted suicide were legalized.  Such a change in the law would generate demands that physicians and other healthcare providers directly or indirectly participate in what they consider to be gravely immoral activities.

In the event that the Supreme Court strikes down the criminal law as it relates to euthanasia or assisted suicide, the intervention urged the Court to “make clear to the legislature that any legislation in this area must protect the freedom of conscience of healthcare providers,” ensuring that “healthcare providers are not directly or indirectly coerced into becoming parties to killing patients or assisting patients kill themselves.”

In a Backgrounder on the intervention, Project Administrator Sean Murphy notes the need for robust protection for freedom of conscience among healthcare providers if the law is changed. In that case, he argues, direction from the Court will be needed “to correct a dangerous error that has become increasingly widespread: that the state or a profession may impose upon people a duty to do what they believe to be wrong – even if that means killing people.”

Elsewhere, he observes that the history of abortion law reform in Canada demonstrates that healthcare providers “cannot rely on mere promises of tolerance and respect for freedom of conscience.”

” The greater the demand for a procedure -whether the demand arises from the number of patients or from ideological rights claims –  the sooner objecting health care workers will face discrimination, harassment and coercion. ”

The intervention was presented on behalf of the interveners by Robert Staley, with the participation of Ranjan Agarwal, Jack Maslen, and Sheridan Scott, all of Bennett Jones LLP, together with CCRL President, Philip Horgan.  27 interventions were approved by the Court.

A decision is expected in the Spring of 2015.

 

Conscience Versus the Spirit of the Age

Address to the Thomas More Lawyer’s Guild,
Toronto, Ontario, Canada (October, 2014)

Jason Kenney*

In this text of his address to the annual Red Mass dinner hosted by the Thomas More Lawyers’ Guild of Toronto in October 2014, then federal Minister of Employment and Social Development Jason Kenney called on assembled lawyers to defend conscience rights as a bulwark against the spirit of the age running roughshod over us.

It is a great honour to be invited to speak from this distinguished podium, which has been graced by people far more worthy than I, to invoke the life, legacy and lessons of our patron saint, Sir Thomas More.

I say “our” patron although I am not a member of your honourable legal fraternities at the bar and the bench. I labour in a much less august vineyard, that of the political vocation. But in the Jubilee Year of 2000, Saint John Paul II decided to add to Saint Thomas More’s already heavy burden as the patron saint of lawyers by also giving him the impossibly difficult task of acting as the patron saint of politicians.

Earlier this evening, we heard the Gospel reading, “Woe to you, lawyers!” Lest you feel put out, please remember that the most prominent politicians in the gospels are King Herod, Pontius Pilate and Caesar, so the politicians fare much worse!

Poor Saint Thomas, shining light of the Renaissance, the greatest jurist and statesman of his era, martyred for this faith—and his eternal reward is now to keep watch over politicians and lawyers. I suspect that he envies Saint Jude, who is charged only with hopeless causes. . .  [Full text]

Canadian Medical Association discussion of euthanasia and assisted suicide

Canadian Medical Association Annual General Meeting, 2014
Strategic Session No. 2: 19 August, 2014
End-of-life care issues in Canada (Committee of the Whole)

Click image to view webcast.

Canadian Medical Association discussion of euthanasia and assisted suicide

Submission to the College of Physicians and Surgeons of Ontario

Christian Legal Fellowship

RE: Physicians and the Ontario Human Rights Code Consultations

The College of Physicians and Surgeons of Ontario (“CPSO”) has invited feedback from al 1 stakeholders in regard to its review of Policy Statement #5-08. Physicians and the Ontario Human Rights Code (”the Policy”). In particular, the CPSO has asked if the Policy provides useful guidance, whether the Policy fails to address any issues, and any other ways in which the Policy should be improved. The Christian Legal Fellowship (“CLF”) appreciates the opportunity to participate in this discussion, as we did in the prior CPSO consultation on Human Rights in September of 2008, and makes the following introduction and submissions.

The CLF is a national charitable association that exists to strengthen the spiritual life of its members, and encourage among Christians in the vocation of law the integration of faith with contemporary legal, moral, social and political issues. The CLF’s membership consists of approximately 550 lawyers, law students, professors, and others who support its work; with approximately one third of its members in the Province of Ontario. It has 14 chapters in cities across Canada and student chapters in most Canadian law schools. While having no direct denominational affiliation, CLF’s members represent more than 30 Christian denominations working in association together. As an association of Christian professionals, we welcome the opportunity to address the issues which the CPSO have raised in this consultation process.

The CLF has intervened in numerous legal cases relating to matters of conscience and religious freedom at the appellate and Supreme Court level. The organization also engages in policy consultations raising issues that impact, among other things, religious freedom and human rights. CLF is therefore knowledgeable and well-positioned to comment on this CPSO policy.

In reviewing the Policy, there are three broad areas of concern for CLF. First, we submit that the Policy fails to recognize that physicians have the right to freedom of religion and conscience. Second, the Policy fails to recognize that the law protects physicians with religious beliefs from engaging in activities that violate their religious beliefs, their moral beliefs and their conscience. Third, the Policy obligates physicians, in “some circumstances” to actively refer a patient for services which violate the beliefs or conscience of the physician.

(l)        Physicians have the right to freedom or religion and conscience.

In its current format, the Policy mentions “personal beliefs and values and cultural and religious practices are central to the lives of physicians and their patients”. This description fails to acknowledge the legal status of beliefs and religion. In fact, conscience and religion, thought, belief, opinion and expression are protected as fundamental freedoms by the Charter of Rights and Freedoms.1  Further, the Human Rights Code2 upon which the Policy is based, protects from discrimination on the basis of creed.3

The Policy also precludes physicians from sharing their religious beliefs with patients: “physicians should not promote their own religious beliefs when interacting with patients, nor should they seek to convert existing patients or individuals who wish to become patients to their own religion”. While this conduct may not be appropriate in all circumstances, a blanket prohibition is problematic and a clear violation of freedom of religion and expression.

Religion as a protected freedom is more than the right to privately think or believe certain ideas and principles. It is broadly defined and demands robust protection. Freedom of religion encompasses the right to entertain religious beliefs of one’s own choosing, the right to declare religious belief openly and without fear of hindrance or reprisal, the right to manifest those beliefs by worship and practice, by teaching and dissemination.4It precludes forcing an individual to act [lacuna] conscience. Under the law, physicians must be afforded the ability to align their practices with their conscience in these controversial areas and others, and that right must be made clear in the CPSO Policy.

CLF therefore urges the CPSO to modify its Policy to reflect the principles outlined above, ensuring it accurately reflects physicians’ rights pursuant to the Charter and the Human Rights Code.

Please note the endorsements that follow. CLF would be pleased to provide further assistance in any way the CPSO believes would be appropriate. Thank you for your consideration of our submissions.

Christian Legal Fellowship

Notes
1. The Constitution Act1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

2. Ontario Human Rights Code,R.S.O. 1990, e. H .19.

3. Ontario Human Rights Commission: Policy 011 Creed and the Accommodation of Religious Observances, October 20, 1996. While creed is not a defined term in the Code, the OHRC has adopted the following definition of creed in its Policy: “Creed is interpreted to mean “religious creed” or “religion.” Tt is defined as a professed system and confession of faith, including both beliefs and observances or worship. A belief in a God or gods, or a single supreme being or deity is not a requisite … The existence of religious beliefs and practices are both necessary and sufficient to the meaning of creed, if the beliefs and practices are sincerely held and/or observed. “Creed” is defined subjectively. The Code protects personal religious beliefs, practices or observances, even if they are not essential elements of tne creed provided they are sincerely held.” Policy page 4-5. ” In the case of discrimination in the workplace, both management and the union have a duty to accommodate. In Central Okanagan School District No. 23 v. Renaud the Court noted that although the principle of equal liability applies, the employer has charge of the workplace and will be in a better position to formulate measures of accommodation. The employer, therefore, can be expected to initiate the process of taking measures to accommodate an employee. Nevenhelcss, the Court also noted that they will not absolve a union of its duty if it fails to put forward alternative measures that are available. In short, when a union is a co-discriminator with an employer it shares the obligation to remove or alleviate the source of the discriminatory effect.” Policy page 9. “Conclusion: Religious pluralism poses a challenge in any multicultural society, especially one as diverse as ours. Although the law is developing rapidly in this area, an informed spirit of tolerance and compromise is indispensable to any civil society, as well as to its capacity to make opportunities available to everyone, on equal terms, regardless of creed [or other protected right].” Policy page 16. “R v. Rig M Drug Mart l 1985] I SCR 295 at336-337

Project Submission to the College of Physicians and Surgeons of Ontario

Protection of Conscience Project

Re: Physicians and the Ontario Human Rights Code

Abstract [Français]

The Ontario Human Rights Commission made a serious error in 2008 when it attempted to suppress freedom of conscience and religion in the medical profession on the grounds that physicians are “providers of secular public services.” In its public perpetuation of this error, the Commission has contributed significantly to anti-religious sentiments and a climate of religious intolerance in Ontario. Both were on display earlier this year when it became front page news and a public scandal that three physicians had told their patients that they would not recommend, facilitate or do what they believed to be immoral, unethical, or harmful.

The physicians had followed the guidelines of the Canadian Medical Association and the College of Physicians and Surgeons of Ontario. Physicians must advise patients about treatments or procedures they are unwilling to recommend or provide for moral or religious reasons, so that patients can seek the services elsewhere. Physicians are not required help patients obtain services or procedures they believe to be wrong.

The arrangement is a compromise that safeguards the legitimate autonomy patients and preserves the integrity of physicians, but it has been continually attacked by activists who want to compel objecting physicians to provide or facilitate abortion and contraception, and, lately, euthanasia. Essentially, the activists assert that physicians have a duty to do what they believe to be wrong because they must not act upon their moral or religious beliefs.

However, it is incoherent to include a duty to do what one believes to be wrong in a code of ethics, the very purpose of which is to encourage physicians to act ethically and avoid wrongdoing. Moreover, one cannot practise medicine without reference to beliefs, whether they reflect a secular ethic or a religious one, and neither a secular ethic nor a religious ethic is morally neutral. Thus, demands that physicians must not act upon their beliefs or must practise medicine in a morally “neutral” fashion are unacceptable because they are impossible.

The demand that physicians must not act upon religious beliefs because medical practice is a secular profession is unacceptable because it is erroneous. The Supreme Court of Canada has acknowledged that a secular society is not faith-free; it includes both religious and non-religious believers, and rational democratic pluralism must make room for them all. The full bench of the Court has warned that to disadvantage or disqualify the exercise of religiously informed conscience in public affairs is an illiberal distortion of liberal principles that offers “only a feeble notion of pluralism.”

If it is legitimate to compel religious believers to do what they believe to be wrong, then it is equally legitimate to compel non-religious believers to do what they think is wrong; everyone would have a duty to do what is believed to be wrong.

Hence, the compromise worked out by the Canadian Medical Association not only safeguards the integrity of physicians and legitimate autonomy of patients, but protects the community against the temptation to give credence to a dangerous idea: that a learned or privileged class, a profession or state institutions can legitimately compel people to participate in what they believe to be wrong – even gravely wrong – even murder – and punish them if they refuse.

Freedom of conscience and freedom of religion are subject to reasonable limitations, but the mantra, “the freedom to hold beliefs is broader than the freedom to act on them”  is inadequate. More refined distinctions are required to address the difficulties that arise in a pluralist democracy. One of them is the distinction between the two ways in which freedom of conscience is exercised: by pursuing good and avoiding evil. There is a significant difference between preventing people from doing the good that they wish to do and forcing them to do the evil that they abhor.

As a general rule, it is fundamentally unjust and offensive to force people to support, facilitate or participate in what they perceive to be wrongful acts; the more serious the wrongdoing, the graver the injustice and offence. It is a policy fundamentally opposed to civic friendship, which grounds and sustains political community and provides the strongest motive for justice. It is inconsistent with the best traditions and aspirations of liberal democracy.  And it is dangerous, since it instills attitudes more suited to totalitarian regimes than to the demands of responsible freedom.

This does not mean that freedom of conscience exercised to preserve personal integrity can never be limited. It does mean, however, that even the strict approach taken to limiting other fundamental rights and freedoms is not sufficiently refined to be safely applied here. Like the use of potentially deadly force, if the restriction of preservative freedom of conscience can be justified at all, it will only be as a last resort and only in the most exceptional circumstances.

When the College of Physicians and Surgeons of Ontario receives complaints from patients who have been unable to obtain services they want, the College should help connect the patients with willing service providers. That would be more helpful than attempting to suppress freedom of conscience and religion in the medical profession. [Full Text]