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Joint intervention in Carter v. Canada

Selections from oral submissions

Supreme Court of Canada, 15 October, 2014

Sean Murphy*

Introduction:
The Catholic Civil Rights League, Faith and Freedom Alliance and the Protection of Conscience Project were jointly granted intervener status in Carter by the Supreme Court of Canada. The joint factum voiced concern that legalization of physician assisted suicide and euthanasia would likely adversely affect physicians and health care workers who object to the procedures for reasons of conscience. The factum was supplemented by an oral submission.

Links to annotated selections from the oral submissions relevant to freedom of conscience are provided below. In each case, readers can access the Supreme Court webcast through the linked image. Time stamps are cited to allow the relevant section of the webcast to be located. On the Supreme Court website, use “full screen” view when dragging the slider button to the desired time stamp.

Joseph Arvay, Q.C. (Counsel for the Appellants)

Jean-Yves Bernard (Counsel for the Attorney General of Quebec)

Harry Underwood (Counsel for the Canadian Medical Association)

Robert W. Staley (Counsel for the Catholic Civil Rights League, Faith and Freedom Alliance, and Protection of Conscience Project)

Promises, promises

Canadian law reformers promise tolerance, freedom of conscience

What happens after the law is changed is another story.

Sean Murphy*

Now let me finally cut to the chase, to the heart of this appeal. The most vociferous opposition to our challenge comes from some church groups, and some disabled organizations. To the church groups we simply say that we respect your religious views, but they cannot, in this secular society, trump our clients’ constitutional rights. And no one is suggesting that a physician who has a religious objection to assisting a patient with his or her death must do so.
Joseph Arvay, Q.C., Oral Submission to the Supreme Court of Canada, Carter v. Canada, 15 October, 2014

Introduction

With the passage of the Quebec euthanasia law and the pending decision in Carter v. Canada in the Supreme Court of Canada, physicians, medical students, nurses and other health care workers opposed to euthanasia and assisted suicide for reasons of conscience are confronted by the prospect that laws against the procedures will be struck down or changed. They may wonder what the future holds for them if that happens.

Will they be forced to provide or assist with something they find morally abhorrent? If they refuse to do so, will they be disadvantaged, discriminated against, disciplined, sued or fired? Will they be forced out of their specialty or profession, or forced to emigrate if they wish to continue in it?

The realpolitik of law reform

These questions have been largely ignored, since much of the public debate about euthanasia and assisted suicide has been about whether or not the procedures should be legalized, not about what effect legalization might have on freedom of conscience, particularly among health care workers. Opponents of legalization understandably decline to raise the issue because they are concerned that doing so would compromise the message they want to deliver.

Advocates of legalization, on the other hand, generally recognize that support for euthanasia and assisted suicide may begin to evaporate if it appears that they intend to force unwilling physicians or health care workers to participate in killing patients. In particular, they do not wish to alienate members of the health care community who, on principle or as a matter of prudent self-interest, would not support such a coercive policy. Instead, they adopt a reassuring posture of respect for freedom of conscience and tolerance for opposing views within the medical profession.

It is instructive to see how this strategy has been applied in the case of the Quebec euthanasia law and the Carter case, and then to consider how it was applied in the case abortion, another morally controversial procedure. While we cannot predict the future, we are now in a position to judge the worth of the assurances given when abortion was legalized over forty years ago, and to apply that judgement to assurances now being made about euthanasia. [Full Text]

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.

There’s no “mushy middle” on euthanasia

Mercatornet

Margaret Somerville*

Many know the saying “You have to fish or cut bait”. Many fewer know the law’s equivalent, “You can’t approbate and reprobate”. But the Canadian Medical Association’s recent dealing with their 2007 Policy on Euthanasia and Assisted Suicide makes it seem they are unaware of the warning and wisdom these axioms communicate.

That CMA policy unambiguously declares: “Canadian physicians should not participate in euthanasia or assisted suicide.” Despite that, a motion passed at the recent CMA General Council meeting, which ostensibly was meant only to ensure freedom of conscience, has allowed the CMA to make the following statement in its intervener factum in the upcoming appeal in the Supreme Court of Canada in the Carter case:

“As long as such practices [as euthanasia and assisted suicide] remain illegal, the CMA believes that physicians should not participate in medical aid in dying. If the law were to change, the CMA would support its members who elect to follow their conscience [either to refuse or to undertake euthanasia and assisted suicide].”

[Full text]

Medical association vows to protect conscience rights

The Catholic Register

Michael Swan

The Canadian Medical Association has passed a new policy on conscience rights that supports a doctor’s right to choose whether or not to help patients commit suicide in jurisdictions where it may become legal.

“If the law were to change, then we would support the right of physicians to follow their conscience. It (the new policy) doesn’t say we favour a change in the law,” said Dr. Jeff Blackmer, the CMA’s executive director of ethics. The CMA stance opposing euthanasia remains in place. “Our position is still that Canadian physicians should not participate in euthanasia or assisted suicide,” Blackmer said. The CMA will come to the defence of doctors who refuse to participate in euthanasia and physician-assisted suicide if the law changes to make those practices legal. . . [Full Text]