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]