Submission to the (Federal) External Panel* on Options for a Legislative
Response to Carter v. Canada
Direct Consultation (Project Administrator)
Vancouver, British Columbia
26 October, 2015
Introduction to the Protection of Conscience Project
Thank you for the invitation to appear before the panel.
The Protection of Conscience Project supports health care workers who
want to provide the best care for their patients without violating their own
personal and professional integrity. It is a non-denominational, non-profit
initiative supported by an Advisory Board and team.
The Project does not
take a position on the morality of contentious procedures. In the present
case, for example, it takes no position on whether or not legalization of
physician assisted suicide and euthanasia is acceptable. Instead, it
critiques policies of coercion and encourages accommodation of objecting
health care workers.
The people best placed to deal with a problem are those directly
involved. Hence, while it is often necessary to explain why a particular
procedure, service or action may be objectionable to some health care
workers, the Project does not purport to speak for or to represent
physicians or other health care workers on these issues; they must speak for
themselves. The Project speaks to principles concerning freedom of
conscience and the acccomodation of freedom of conscience.
As the opportunity arises, the Project responds to critics and draws
attention to attitudes, policies and laws that fail to make sufficient
allowance for legitimate freedom of conscience.
You have provided one
such an opportunity, for which, once more, I thank you.
With respect to what experience or particular knowledge the Project
brings to the panel, it has been in operation for over 15 years. The Project
has filed submissions with regulatory authorities and parliamentary
committees in Canada, the United States, Ireland, the United Kingdom and
Europe. Project resources or materials have been cited in over a dozen books
published since 2006, in articles in a number of professional journals - not
always favourably - and in an intervention at the United States Supreme
With respect to the subject of the present submission, its three part
article on Quebec's draft euthanasia bill was translated into Turkish and
published in the Comparative Current Criminal Law Series by Özyeğ in
University in Istanbul. And I am here because the Project jointly intervened
at the Supreme Court of Canada in the Carter case.
One point I wish to emphasize at the outset is that having to speak
defensively can create the impression of a kind of combat situation -
physician vs. patient. That is not what is intended. Physicians I have
spoken with care deeply for their patients, and what we have to say presumes
that kind of relationship. Unfortunately, the subject of the discussion can
Outline of this submission
I will first discuss terminology, the language I will be using, so as not
to shock people. I will then explain the concept of freedom of conscience
that informs the work of the Project. Next I will discuss the obligation to
kill, which is related to failed euthanasia attempts and urgent requests for
euthanasia or assisted suicide. I will then discuss eligibility criteria and
key terms, which are issues that concern the panel. Much of my time will be
spent on referral, and I will be relating referral to the risks to society,
another of the panel's concerns, and to safeguards. I will offer examples of
I will be using the words kill, homicide, suicide, and euthanasia, and using them quite casually.
Beauchamp and Childress note, "The term killing does not necessarily entail
a wrongful act or a crime."1 Neither does homicide. Suicide is not a crime,
nor is attempting suicide.
- The fundamental premise of the Carter
decision that determined the trajectory and outcome of the case is that
suicide can be a rational and moral act, so that assisted suicide and
euthanasia can be rational and moral acts (Tab 13, p. 12-14).
"medical aid in dying" as defined in Quebec's euthanasia law means killing
or homicide was acknowledged by those who support the law. (Tab 14, p.
- The Canadian Medical Association uses the terms "medical aid in
dying" or "assisted dying" to mean both euthanasia and assisted suicide.
While this explicit terminology is unwelcome in some quarters, the Project
continues to use it for three reasons.
First: from the perspective of
those who object to euthanasia and assisted suicide for reasons of
conscience, these terms allow them to succinctly and clearly express the
basis for their opposition. To disallow the terminology impairs their
ability to defend themselves and articulate their reasoning.
keeps the moral/ethical issues that are of concern to conscientious
objectors front and centre. Terms like 'medical aid in dying' tend to
obscure these issues and encourage the pretence that laws permitting
euthanasia and assisted suicide or support for the procedures are morally
neutral. They are not.
Third: the failure to distinguish between
euthanasia and assisted suicide obscures the fact that more physicians are
willing to provide assisted suicide than euthanasia. Whether or not one
accepts the moral distinction, this has some practical consequences that I
will discuss today.
Freedom of conscience
A brief discussion of
freedom of conscience as it relates to the work of the Project is in order
because, contrary to what one might expect, it is not well understood. For
example, the 1948 Universal Declaration of Human Rights was, apparently, the
first statute that distinguished freedom of conscience from freedom of
The Project's interest in freedom of conscience for health care
workers does not exclude recognition that patients are legally entitled to
access morally contested procedures. The goal is to accommodate the
fundamental freedom of health care workers without obstructing or harming
patients. I pause here to note that what constitutes "obstruction" and "harm" is now disputed.
As I have noted, the Project does not take a
position on the acceptability of morally contested procedures. The question
we pose is, "If you think that X is good thing and ought to be provided,
what will you do to ensure that those who disagree with you are not forced
to be complicit in X, or disadvantaged for refusing to provide or facilitate
This focus on refusal is deliberate and principled. Freedom of
conscience is exercised in two different ways.
- The first is by pursuing
some good that one thinks should be done: perfective freedom of conscience,
because the pursuit of the good as one understands it is thought to be
perfective of the human person.
- The second involves refusing to do what one
believes to be wrong: preservative freedom of conscience - preservative of
We argue that preservative freedom of conscience -
refusing to do what one believes to be wrong - is the more essential. It is
the condition necessary for the exercise of perfective freedom of
conscience, and the condition necessary for the existence of any human
society. Hence, the Project's advocacy is limited to this more fundamental
manifestation of freedom of conscience: refusing to do what one believes to
You can find this argument explained and developed in more
detail in Freedom of Conscience in Health Care: Distinctions and Limits, the
As far as I know, this distinction has not been made in
Charter jurisprudence dealing with the limitation of freedom of conscience
and religion. Instead, one repeatedly encounters the kind of claim made by
the Ontario Human Rights Commission: that physicians can be forced to do
what they believe to be wrong because freedom of conscience is limited; the
freedom to hold beliefs is wider than the freedom to act upon them.
freedom to hold beliefs is wider than the freedom to act on them." I call
this the Trinity Western mantra, because it was enunciated by the Supreme
Court of Canada in Trinity Western University vs. the B.C. College of
Teachers.2 It has become one of the favourite sayings of Canadians bent upon
suppressing freedom of conscience and religion.
But it could also be
called Oliver Cromwell's mantra, because the Lord Protector articulated and
used exactly the same principle to suppress the practice of Catholicism in
Well, the freedom to hold beliefs IS broader than the freedom
to act upon them. This is true, but it is inadequate. A principle suitable
for a public policy of religious persecution in a 17th century dictatorship
is not sufficiently refined to serve as a principle of public policy in a
21st century liberal democracy.
A further distinction between perfective
and preservative freedom of conscience is necessary. The freedom to refuse
to do what one believes to be wrong is, by its nature, already a very
limited freedom - much more limited than perfective freedom of conscience.
You can see this by considering a resolution adopted by the Canadian Medical
Association in 2014.
The Canadian Medical Association supports the right
of all physicians, within the bounds of existing legislation, to follow
their conscience when deciding whether to provide medical aid in dying as
defined in CMA's policy on euthanasia and assisted suicide. (Tab 7,
p. 29, 32)
This motion -
resolution - which was later incorporated into CMA policy - expressed
support not only for physicians who refuse to kill patients or assist in
suicide for reasons of conscience - the preservative freedom of conscience
that is the subject of the Project's concern - but also for those who are
willing to do so, in accordance with their convictions - perfective freedom
Unnoticed at the time was the fact that the CMA's promise
to support physicians who provide euthanasia and assisted suicide was not
qualified or circumscribed by any criteria for the procedures beyond
criteria that might be specified in law. The Supreme Court provided the
criteria in February, but, eight months later, we are still trying to figure
out how to implement the Carter decision.
This demonstrates that
accommodating the exercise of perfective freedom of conscience demands much,
much more from society than accommodating refusal to do what one believes to
be wrong. This is one of the distinctions ignored by the mantra taken from
the Supreme Court of Canada ruling in Trinity Western vs. the College of
Teachers or the Declaration of the Lord Lieutenant of Ireland.
obligation to kill
I will touch briefly here on the obligation to kill,
because this has some serious practical implications. The general issues
associated with a professional obligation to kill and its relationship to
euthanasia and assisted suicide are discussed in some detail at
Tab 7, p. 24
to 26. More particularly, in the case of the Quebec euthanasia law, see
14 in Part 5, beginning at p. 71.
In the spring of 2014, CMA ethicist Dr.
Jeff Blackmer and then CMA President Dr. Louis Hugo Francesscutti
acknowledged that legalization of euthanasia and physcian assisted suicide
would impose an obligation to kill upon Canadian physicians. (Tab 7,
p. 24) They did not
develop this further, and the point has not received sufficient attention
since then, but it has practical implications for the provision of
euthanasia and assisted suicide, and it is very important for physicians who
object to killing patients or helping them commit suicide.
to kill is not the same as the authority to use deadly force the law grants
to people acting in self defence, the police or soldiers in combat. Neither
the police nor soldiers have an obligation to kill. In common law
jurisdictions, an obligation to kill has, historically, been imposed only on
A physician who agrees to help lethally inject a
patient or help him commit suicide would seem to have accepted an obligation
to do something that will result in the patient's death, and to do it
according to accepted standards. This obligation seems implicit in the
Such an obligation is implied in the Quebec euthanasia law,
which requires a physician who has administered a lethal substance to a
patient to remain with the patient "until death ensues,"4 and practically
demonstrated by the provision of euthanasia kits that include two courses of
lethal medication in case the first does not work.5
The obligation to kill
is particularly relevant with respect to two problems that I will now
consider. The first is a failed euthanasia or assisted suicide attempt. The
second is an obligation to kill in urgent situations.
The problem of failed euthanasia or assisted
suicide attempts concerns one of the issues the panel must address: the
different ways in which physicians may cause the death of patients under the
terms of the Carter ruling: by assisted suicide or by voluntary euthanasia.
The first point to note is that euthanasia and assisted suicide drugs do
not always cause death as expected.6 However, the recommendations recently
approved by the Canadian Medical Association (Tab 9, p. A2-3) and draft
policy of the College of Physicians and Surgeons of Saskatchewan (Tab 10, p.
4, 1.4) do not take this into account, while the draft policy of the College
of Physicians and Surgeons of Alberta (Tab 11, p.6) is not clear about it.
The second point is that more physicians appear to be willing to participate
in assisted suicide than euthanasia. This is usually overlooked because CMA
officials prefer to use their term "medically assisted dying," which
CCMA statistics indicate that 27% of physicians are
willing to provide assisted suicide, but only 20% are willing to provide
euthanasia.7,8,9,10 The statistics appear to be based on an internal survey of
less than 2% of the CMA membership, and it is not certain they can be
reliably extrapolated to the entire profession. However, the difference was
sufficient to cause some anxiety for CMA officials in the months following
the Carter ruling.
I repeat here what I said earlier. A physician who
agrees to help a patient commit suicide would seem to have accepted an
obligation to do something that will result in the patient's death.
the case of a failed physician-assisted suicide that incapacitates a
patient, it is likely that the responsible physician will be expected to
fulfil his commitment to help bring about the death of the patient by
providing a lethal injection. The expectation would be stronger if the
patient had sought assisted suicide to avoid the kind of incapacitation
caused by the failed suicide attempt. Here the issue of physicians willing
to assist in suicide but unwilling to provide euthanasia becomes acute.
Those willing to assist with suicide but not euthanasia may also be
reluctant or unwilling to ask another colleague to kill an incapacitated
patient who has not succumbed to assisted suicide drugs. The draft policy of
the College of Physicians and Surgeons of Alberta appears to prohibit this.
(Tab 11, p. 7, item 9: Ongoing capacity)
Moreover, the Carter ruling
limits the provision of euthanasia to competent patients. Thus, to ask
physicians to kill a patient who has been rendered incompetent by a
colleague's failed attempt would seem to expose them to prosecution for
first degree murder or, at least, assisted suicide.
avoid conflict following failed attempts
The first four recommendations
offered by the Project are intended to avoid or minimize conflicts of
conscience arising in this kind of situation.
1) Physicians should not
undertake to provide assisted suicide unless they are also willing to
2) In all cases, the responsible physician should, as
part of the informed consent discussion preliminary to decision making,
advise the patient of the possibility that the drugs might not cause death
and discuss the options available.
3) Immediately prior to administering
or providing the lethal medication, obtain written direction from the
patient as to what action should be taken if the prescribed or administered
drugs fail to cause death. (NB. In the case of patients incapacitated by
failed euthanasia/assisted suicide, it is not known if this would be legally
sufficient to invoke the exemption from prosecution provided by Carter.)
4) The responsible physician should personally administer the lethal drug or
be personally present when it is ingested, and remain with the patient until
The fourth recommendation is consistent with a similar
requirement in Quebec's Act Respecting End of Life Care. It minimizes the
likelihood of conflict among other physicians or health care workers that
might arise if responsible physicians were permitted to delegate the lethal
act to others. In this respect, the recommendations of the CMA, the College
of Physicians and Surgeons of Saskatchewan and the College of Physicians and
Surgeons of Alberta concerning euthanasia and assisted suicide are unsatisfactory:
• CMA (Tab 9, p. A2-4) Stage 3:
After undertaking assisted dying. 11.
• CPSS (Tab 10, last sentence in
the draft assisted dying policy)
• CPSA (Tab 11) Silent.
attempts we move now to the possibility that the obligation to kill may be
invoked to force an objecting physician to kill a patient or help with
Lawyer Joseph Arvay, acting for the appellants in Carter,
opposed the Project's intervention at the Supreme Court of Canada because
his clients had never argued that physicians should be forced to kill
patients.11 In his oral submission, he emphasized that no one was suggesting
that objecting physicians provide assisted suicide or euthanasia.12
was quite true, and characteristic of the approach taken by activists
seeking the legalization of morally contested procedures or the suppression
of freedom of conscience among health care workers. They generally do not
demand that objecting health care workers personally provide the service to
which they object. They demand, instead, that objectors facilitate the
service by helping patients obtain it from someone else. This is typically
described as the problem of referral. Most of my presentation today will
deal with that issue.
However, demands are also made that, in urgent
situations, when no one else is available, objecting physicians must provide
even services they find morally reprehensible (Tab 5, p. 31, 5.4;
Tab 6, Memo to
College Council p.
7, 5.4) This becomes complicated because physicians do have an ethical and
legal obligation to provide medical treatment in an emergency.
physicians do not dispute this, and, in the Project's experience, are quite
willing to do so. However, there is a legitimate concern that the definition
of "emergency" will prove to be as elastic as the definitions of "health" or
the "best interests" of a patient have proved to be.
does not seem likely in the case of euthanasia and assisted suicide. The
provision of the procedures is expected to include a number of procedural
safeguards that will take some time, so it seems unrealistic to expect an
emergency request for the services. The College of Physicians and Surgeons
of Ontario, when it imposed a highly controversial policy of mandatory
referral, explicitly stated that it would not consider a request for
euthanasia or assisted suicide to be an emergency.13
So it would seem that
concern that objecting physicians might be forced to provide euthanasia or
assisted suicide in an emergency is unjustified, and claims to that effect
best described as scaremongering.
However, there is evidence that such
situations can arise. It was provided to the Quebec legislative committee
studying the bill that has since become the province's euthanasia law. I
believe that the transcripts are still available only in French (except on
the Project's website), so this information is largely unknown outside of
Quebec, and I don't know how widely it is known there.
the College of Pharmacists of Quebec who appeared before the committee
agreed that the provision of euthanasia would not seem to involve "the same
urgency" as other kinds of procedures.14 However, they distinguished between
making a decision that euthanasia should be provided - a decision which
might take days or weeks - and a decision that a drug must be urgently
administered to deal with an unanticipated and critical development in a
patient's condition.15 For example, palliative sedation was sometimes urgently
requested as a result of respiratory distress precipitated by sudden
With this in mind, consider the following scenario. After
following the required protocols, a Vancouver physician, on a Friday, agrees
to provide euthanasia or assisted suicide for an eligible patient. However,
they schedule the procedure for the following Tuesday so that a family
member working in camp near Fort St. John can be at the bedside. On Saturday
night, an unexpected crisis causes the patient and family to ask for an
immediate lethal injection to put an end to the patient's suffering.
problem will arise if the responsible physician is immediately available to
fulfil the request. However, if the responsible physician has gone to
Whistler for the weekend, is attending a mother in labour or is otherwise
unavailable, another physician may be called upon to provide the lethal
injection, and may be expected to do so because the patient is urgently in
need of relief.
A conflict is likely to arise if the physician is morally
opposed to euthanasia. According to the Model Conscientious Objection Policy
proposed by an academic trio including one of Canada's foremost euthanasia
advocates, Jocelyn Downie, this physician would be obligated to kill the
patient or find someone willing and able to do so immediately (Tab 5, p. 31,
5.4). Earlier this year the College of Physicians and Surgeons of
Saskatchewan attempted to enact a virtual clone of this model policy -
including this provision (Tab 6,
Memo to College Council, p. 5-7; Policy-Conscientious Refusal).
In view of the explanation
provided by Quebec pharmacist representatives and the apparent popularity of
the Model Conscientious Objection Policy among some medical regulators, it is not
scaremongering to draw attention to this issue. It is a foreseeable problem
that ought to be addressed, not only to protect freedom of conscience, but
to avoid needless conflict and distress to patients, families an other
health care workers in particularly trying circumstances. For these reasons,
the Project offers the following recommendations.
avoid conflict in urgent situations
5) A responsible physician who has
agreed to provide euthanasia or assisted suicide must be continuously
available to do so from the time the agreement is made to the time that the
procedure is performed, unless the patient withdraws the request.
responsible physician who has agreed to provide euthanasia or assisted
suicide must also arrange for a second responsible physician to provide the
procedure in the event that he is unable to be continuously present or is
unable to act.
7) The second responsible physician must be continuously
available to act in the place of the primary responsible physician.
Eligibility criteria and definition of key terms
The panel has asked for
feedback on eligibility criteria and definition of key terms. Since the
Project does not take a position on the acceptability of euthanasia or
physician assisted suicide, my comments here limited to reflections on
conflicts of conscience that may arise as a result of the criteria or the
terminology, and corresponding threats to freedom of conscience.
With respect to terminology, I first return to the point I
raised at the outset: the language used to identify the morally contested
acts. To demand that those who object to euthanasia and assisted suicide for
reasons of conscience adopt the language of euthanasia and assisted
advocates is to deprive them of the words they must use to succinctly and
clearly express the basis for their opposition: homicide, suicide,
It does not follow from this that objecting
physicians should always use this language. Prudence may suggest otherwise,
particularly when attempting to engage productively with colleagues or
patients. Recall, here, my earlier comments; objecting physicians care
deeply for their patients. On the other hand, prudence may also suggest
that, even in such circumstances, direct language is required, particularly
when faced with demands that they kill patients, help them to commit suicide
or find someone willing to do so.
eligibility criteria offered by the Supreme Court are very broad, and they
have been the subject of extensive public comment since the ruling. One word
that seems to have escaped notice is "including" - in the passage, "a
grievous and irremediable medical condition, (including an illness, disease
or disability.)" The real significance of "including" here is not that it
encompasses disability, but that it encompasses unspecified conditions
beyond illness, disease and disability: frailty, for example,17 or "failure to
Beyond that, it is certain that the parameters set by Carter
will be expanded. For example: Quebec's euthanasia law is supposed to apply
only to competent adults, but, even before the law was passed, the
government was being pressured by various establishment organizations to
expand the law to authorize euthanasia by advance directives and extend
euthanasia to the mentally ill and children. (Tab 14, p. 45-49)
Arvay, counsel for the appellants, acknowledged in his oral submission that
this kind of expansion can occur and has occurred in Belgium, but described
it as ordinary and unproblematic: "construction of legislation," "the
democratic process working," and "the Charter working."19
Two elements in
the draft policy now being considered by the College of Physicians and
Surgeons of Alberta are of interest here.
With respect to the criterion
of "intolerable suffering," the proposed policy limits the role of
physicians to establishing the existence of an irremediable medical
condition, leaving the patient to determine all issues related to the
existence and nature of suffering. In effect, the policy sets one of the
legal criteria that physicians must ensure are met outside the purview of
physicians. (Tab 11, p. 7, 6. Medical opinion)
However, it would not be
unreasonable for physicians -even those who do not object to euthanasia and
assisted suicide - to take the position that they must somehow be satisfied
that a patient is experiencing intolerable suffering, since this is one of
the criteria that they must establish to qualify for exemption from
prosecution for murder and assisted suicide. Note that, in a prosecution for
murder, the patient would not be available to testify as to the existence
and intolerability of suffering.
The second element in the Alberta draft
policy is the provision that envisages the provision of euthanasia and
assisted suicide to put an end to suffering caused by "depression" or a "psychiatric or psychological disorder," on the condition that physicians
establish that the depression or disorder is not "causing" impaired
judgement. (Tab 11, p. 7, 7. Referral for pscyhiatric/psychological
These issues are relevant from the perspective of the Project
because the broader the criteria for a morally contested procedure, the
greater the likelihood of conflicts of conscience and conscientious
objection, and, consequently, the greater the need for robust protection of
conscience policies and laws.
Referral: the "absolutely intractable"
I now turn to what one frustrated professor has called the
"absolutely intractable" problem of referral.20 This is not a new problem. The
Project has been dealing with it continually for fifteen years, and for
fifteen years has predicted the controversy that is now underway about this
issue as a result of the Carter ruling. I will presently explain that
referral has been a contentious issue in Canadian health care for over forty
First, however, it is important to recognize what is meant by
referral. It has a specific, technical meaning: a written request by a
physician to another physician or specialist requesting the examination or
treatment of a patient. However, in debates and disputes about freedom of
conscience in health care, it typically has a broader, popular meaning:
helping patients to obtain a morally contested service by directing them to
someone who will provide it, with or without a technical written referral.
It is in this broader sense that I use it today: actively helping a
patient to obtain a morally contested service. Many objecting physicians
refuse to do this, for the reason very succinctly explained by the President
and Director General of Quebec's Collège des médecins, Dr. Charles Bernard.
[I]f you have a conscientious objection and it is you who must
undertake to find someone who will do it, at this time, your conscientious
objection is [nullified]. It is as if you did it anyway. / [Original French]
Parce que, si on a une objection de conscience puis c'est nous qui doive
faire la démarche pour trouver la personne qui va le faire, à ce moment-là ,
notre objection de conscience ne s'applique plus. C'est comme si on le
faisait quand même.21
Ironically, Dr. Bernard
seemed unaware that he was in conflict with his own Code of Ethics, which
requires objecting Quebec physicians to help patients find a physician
willing to do what they are unwilling to do for reasons of conscience. This
is discussed at length in relation to Quebec's euthanasia law at
Tab 14, p.
In any case, the central issue for objecting physicians is
unacceptable complicity in what they consider to be an immoral act.
Different physicians may draw the line in different places. For example,
some are willing to provide a phone number or address for an abortion
clinic, but others will only direct a patient to general public sources
where that information can be found. Despite these differences, the desire
to avoid complicity in wrongdoing is actually a well understood and widely
accepted ethical concern - as Dr. Bernard said - and I need not dwell on it
The Project does not take a position on the morality or
acceptability of referral, just as it does not take a position on the
acceptability of morally contested procedures. However, the Project opposes
coerced referral, or punishment or discrimination against health care
workers who, for reasons of conscience, refuse to facilitate what they
believe to be wrong by referral or other means.
The CMA and referral
The Canadian Medical Association has experienced numerous conflicts about
referral, but most Canadian physicians now in practice are probably unaware
of the history of the issue. (Tab 4)
The current provision of the CMA
Code of Ethics that deals with conscientious objection dates to the major
1970 revision of the Code following the reform of the abortion law in 1969.
Physicians were expected to advise patients of personal moral beliefs that
might prevent them from recommending a treatment so that the patient could
seek the treatment elsewhere. This approach was supported by resolutions at
the Annual General Council in Halifax in 1971.
abortion rates in the early 1970's generated demands that objecting
physicians provide or facilitate the procedure. In 1977 the Annual General
Council revised the Code to include a requirement that objecting physicians
"advise the patient of other sources of assistance." Supporters of the
revision justified it by appealing to the principles of compassion and
The revision was widely understood to imply an
obligation to refer patients for abortion. This generated considerable
controversy within the Association, and in 1978 the requirement was deleted
and the earlier provision concerning conscientious objection was restored.
Physician were expected to advise patients about procedures they would not
For the next thirty years the CMA maintained this position,
despite demands and criticism by pro-abortion activists. One of these was
Professor Jocelyn Downie. As co-author of a 2006 guest editorial in the
Canadian Medical Association Journal, she claimed that objecting physicians
have an ethical and legal obligation to refer patients for abortions. The
strong adverse response persuaded her that the CMA was unlikely to change
its policy, and she decided to approach provincial Colleges of Physicians to
use their regulatory power to force the change she wanted to see.
she was one of six members of an "expert" panel of the Royal Society of
Canada that recommended legalization of physician assisted suicide and
euthanasia. Despite the outcome of Downie's 2006 editorial, their report
stated that because it was agreed that health care workers could be forced
to refer for "reproductive health services" that were contrary to their
moral convictions, they could also be forced to refer for euthanasia and
Jocelyn Downie and Daniel Weinstock, another member of
the Royal Society expert panel, are members of the faculty of the
"Conscience Research Group."23 This is a quarter-million dollar Canadian
Institutes of Health Research (CIHR) funded project.24
A central goal of
the group is to entrench in medical practice a duty to refer for or
otherwise facilitate contraception, abortion and other "reproductive health"
services. From the perspective of many objecting physicians, this amounts to
imposing a duty to do what they believe to be wrong. But that is just what
the Royal Society experts and the Conscience Research Group and others
propose: that the state or a profession can impose upon physicians a duty to
do what they believe to be wrong.
The Model Conscientious Objection
Tab 5 was produced by the Group, which, in 2013, began lobbying
Colleges of Physicians across the country to adopt it.(Tab 6, Project
Submission, Appendix "B", B.II) It demands that objecting physicians refer
patients for all "legally permissible and publicly funded health services,"
and, in urgent circumstances where delay jeopardizes a patient's "health or
well-being", provide the service themselves, even if doing so violates their
moral convictions. Euthanasia and physician assisted suicide will soon be
"legally permissible and publicly funded health services."
of the Conscience Research Group is demonstrated by the fact that the
Associate Registrar of the College of Physicians and Surgeons of
Saskatchewan copied their model policy almost verbatim and succeeded in
having it approved in principle by the College Council. (Tab 6, Policy-
Conscientious Refusal; Project Submission Appendices "A" and "B") The policy
was proposed with the legalization of assisted suicide in mind (Tab 6, Memo
to College Council, p. 8). After the Carter decision, the Associate
Registrar acknowledged that the policy would apply to assisted suicide, and
that physicians unwilling to refer patients for assisted suicide might lose
their licenses to practise. (Tab 6, Project Submission Appendix "C", p. 56)
He also attempted to convince Registrars in other Colleges to adopt the
policy, explicitly referring to the possible legalization of assisted
suicide and euthanasia. (Tab 6, Project Submission Appendix "B", BV)
result of overwhelming opposition from the medical profession and the
public, the original draft policy was withdrawn. However, the Associate
Registrar and drafting committee continued to put forward alternatives
intended to achieve the same end. Eventually, a problematic but somewhat
less objectionable policy was adopted. It includes a proviso that it does
not apply to assisted suicide and euthanasia. However, the Project considers
this statement to be a disingenuous tactic adopted to help secure approval
of the policy. Almost all of the principles advanced to support the policy
have been advanced to support euthanasia or assisted suicide. (Tab 6,
Project Submission 5 June, 2015, Appendix "C")
Parts of the Conscience
Research Group's model policy have also been copied almost verbatim into the
College of Physicians and Surgeons of Alberta draft policy on Physician
Assisted Death. (Tab 11, p. 5, 9)
Finally, returning once more to the
CMA, erroneous and misleading briefing materials provided to delegates at
the Annual General Council suggest a bias in favour of referral on the part
of some CMA officials. (Tab 8) Fortunately, this does not appear to have
adversely affected the outcome, but it is indicative of the tendency to
consider mandatory referral as the preferred response to conscientious
Referral and risks to individuals and society
has asked for feedback about risks to individuals and society posed by the
Carter decision. From the perspective of the Project, coerced referral for
euthanasia and assisted suicide present unacceptable risks to the
fundamental freedom of individuals and groups or associations united by
common religious, moral or ethical convictions that proscribe support for or
participation in such practices. Beyond that, coerced referral presents an
unacceptable risk to society.
What is now being advanced by the
Conscience Research Group, some medical regulators and influential academics
is the dangerous idea that a learned or privileged class, a profession or
state institutions can legitimately compel people to do what they believe to
be wrong - even gravely wrong - even killing someone or being a party to
homicide or suicide - and punish them if they refuse.
This is not a
reasonable limitation of fundamental freedoms, but a reprehensible attack on
It is a serious violation of human dignity.
It is incoherent,
because it posits the existence of a moral or ethical duty to do what one
believes to be wrong: that physicians codes of ethics should include a duty
to do what they believe to be unethical.
And it is profoundly dangerous.
If the state can demand that citizens must be parties to killing other
people and threaten to punish them or discriminate against them if they
refuse, what can it not demand?
The silence of traditional defenders of
civil liberties on this issue is remarkable.
We do not use criminal law
to enforce fundamental rights and freedoms per se. For that we rely upon
human rights statutes. But we do use the criminal law to prevent and to
punish particularly egregious violations of fundamental freedoms that also
present a serious threat to society: unlawful electronic surveillance,
unlawful confinement and torture, for example.
Coercion or intimidation
intended to force citizens to become parties to homicide or suicide is both
an egregious violation of fundamental freedoms and a serious threat to
society that justifies the use of criminal law.
For this reason, whatever
might be decided about laws regulating euthanasia and assisted suicide, the
Project proposes the following amendment to the Criminal Code.
An Act to
Safeguard Against Homicide and Suicide
Section 241.1 Criminal Code
Compulsion to participate in homicide or suicide
241.1(1) Every one
commits an offence who, by an exercise of authority or intimidation, compels
another person to be a party to homicide or suicide.
to participate in homicide or suicide
241.1(2) Every one commits an
a) refuses to employ a person or to admit a person to a trade
union, professional association, school or educational programme because
that person refuses or fails to agree to be a party to homicide or suicide;
b) refuses to employ a person or to admit a person to a trade union,
professional association, school or educational programme because that
person refuses or fails to answer questions about or to discuss being a
party to homicide or suicide.
Intimidation to participate in homicide or
241.1(3) Every one commits an offence who, for the purpose of
causing another person to be a party to homicide or suicide
that being a party to homicide or suicide is a condition of employment,
contract, membership or full participation in a trade union or professional
association, or of admission to a school or educational programme; or
makes threats or suggestions that refusal to be a party to homicide or
suicide will adversely affect
i) contracts, employment, advancement,
benefits, pay, or
ii) membership, fellowship or full participation in
a trade union or professional association.
241.1(4) a) For
the purpose of this section, "person" includes an unincorporated
organization, collective or business.
b) For the purpose of subsection
(1), "homicide" and "suicide" include attempted homicide and suicide.
241.1(5) a) Every one who commits an offence under subsection
(1) is guilty of an indictable offence and liable to imprisonment for life.
b) Every one who commits an offence under subsection (2) is guilty of an
indictable offence and liable to imprisonment for ten years.
c) Every one
who commits an offence under subsection (3) is guilty of an indictable
offence and liable to imprisonment for five years.
Safeguards to address
The amendment to the Criminal Code proposed above, while intended
to protect society at large against particularly dangerous abuses of
authority or power and violations of fundamental freedoms, will also
function as an additional safeguard against abuses that even the successful
appellants in the Carter case are keen to avoid.
In his oral submission,
Mr. Arvay asserted that he was advocating physician assisted dying "because
we know physicians will be reluctant gatekeepers, and only agree to it as a
last resort." (Tab 7, p. 43) The proposed amendment will help to ensure that
physicians can remain the reluctant gatekeepers that Mr. Arvay wishes them
Further, the proposed amendment to the Criminal Code would ensure
that, in all provinces and territories, a single standard would prevail to
ensure participation of physicians in euthanasia and assisted suicide on an
entirely voluntary basis, setting an important base line for consistent
regulations developed by the federal government or in different provinces.
This would also address one of the concerns consistently expressed by the
Canadian Medical Association - the importance of a common standard across
Acceptable model policies
It is possible that adequate
protection of conscience measures will be adopted by regulators and
institutions. The draft policy proposed by the College of Physicians and
Surgeons of Alberta could be improved in some respects, but the key elements
are sound. (Tab 11, p. 9) The Canadian Medical Association's recommendation
concerning conscientious objection by a physician is satisfactory (Tab 9, p.
Both the Alberta and CMA recommendations distinguish between
the provision of all information necessary for a patient to make an informed
decision about options (required) and directing the patient to someone who
will provide euthanasia or assisted suicide (not required). In the Project's
experience, this distinction and the obligation to provide information are
accepted by most objecting physicians.
This approach is found in the
Project's suggested policy on freedom of conscience and religion at
in the Project Submission, Appendix "A", which can be applied to all morally
contested procedures. Note that the same is true of the Alberta College
document through its reference to the College's primary policy about
religious and moral beliefs. (Tab 11,
Recommendations re: policies
8) It is preferable to have a single policy
concerning the exercise of freedom of conscience and religion that can be
applied to all morally contested procedures. This helps to avoid bias that
occurs when some morally contested procedures are given a privileged
position based on a predominant moral viewpoint (i.e., requiring referral
for contraception but not for abortion, or for abortion but not for
9) A distinction can be made between providing
information needed for informed medical decision making (required) and
facilitating direct access to a morally contested service (not required).
Position of objecting physicians
The position of objecting physicians and
health care workers will be tenuous until Members of Parliament decide that
citizens must not be forced to be parties to homicide or suicide, should not
be punished or discriminated against for refusing to be parties to homicide
or suicide, and amend the Criminal Code to ensure that such things do not
There are three reasons why, in the absence of such a law, the
position of objecting physicians will be uncertain.
First: the history
of the controversy within the CMA about referral, which has arisen
repeatedly over forty years, suggests that physicians and other health care
workers will likely face conflict about euthanasia and assisted suicide and
pressure to participate, perhaps for decades.
Second: the Carter decision
provides an exemption from prosecution for murder and assisted suicide for
physicians who kill patients or help them commit suicide in the
circumstances described in the ruling. It prevents the government from
interfering to prevent that, but it does not actually require individual
physicians or the medical profession as a whole to provide or arrange for
euthanasia or assisted suicide. Nonetheless, some - including the College of
Physicians and Surgeons of Alberta - claim that the Carter ruling provides a
Charter right to physician assisted suicide or homicide by a physician. (Tab
11, p. 4) This is a powerful rhetorical claim that is likely to be used to
try to force physicians to do what they believe to be wrong.
Having secured the passage of a resolution promising support for physician
freedom of conscience and neutrality on the issue of physician participation
in euthanasia and assisted suicide, the CMA executive not only reversed CMA
policy against the practices, but approved euthanasia and assisted suicide
under any conditions set by law, without promised to ensure patient access
to "the full spectrum" of euthanasia an assisted suicide should the
practices be legalized, no matter what the criteria might be.(Tab 7)
revised policy does not exclude euthanasia or assisted suidice for minors,
the incompetent, or the mentally ill, and it is not limited to the
terminally ill or those with uncontrollable pain. It refers only to
"patients" and the "suffering of persons with incurable diseases. The
Directors thus committed the Association to support euthanasia not only for
competent adults, but for any patient group and for any reason approved by
the courts or legislatures. As broad as the Carter ruling is, it is more
restrictive than CMA policy.(Tab 7)
By formally approving physician
assisted suicide and euthanasia rather than adopting a neutral position, and
by committing the CMA to support patients's access to physician assisted
suicide and euthanasia under conditions set by law, the Directors implicitly
agreed that, in some circumstances, physicians have a professional
obligation to kill patients or to help them kill themselves.(Tab 7)
effectively set the weight and influence of the entire Association against
physicians who believe that it is wrong to participate in killing patients
or helping them to kill themselves, or, at least, that physicians should not
do so, even if someone else may. When euthanasia and assisted suicide are
considered legitimate forms of medical treatment, providing the services
become normative for physicians, while refusing to do so becomes the
Hence, the Directors agreed that freedom of conscience
for objecting physicians might be limited in order to ensure patient access,
but they placed no limits on criteria for euthanasia and assisted suicide,
and no limits on what the Association and non-objecting physicians might
agree to do.(Tab 7)
The long term consequences of all of this are
unpredictable, particularly in the absence of a law to prevent coercion.
1. "The term killing does not necessarily entail a
wrongful act or a crime, and the rule 'Do not kill' is not an absolute rule.
Standard justifications of killing, such as killing in self-defense, killing
to rescue a person endangered by another persons' wrongful acts, and killing
by misadventure (accidental, non-negligent killing while engaged in a lawful
act) prevent us from prejudging an action as wrong merely because it is
killing." Beauchamp TL, Childress JF, Principles of Biomedical Ethics
ed.) New York: Oxford University Press, 2013, p. 176
Trinity Western University v. the British
Columbia College of Teachers,  1 S.C.R. 772, 2001 SCC 31. Approving P.
(D.) v. S. (C.),  4 S.C.R. 141
3. "As for the People [of Ireland], what
thoughts they have in matters of Religion in their own breasts I cannot
reach; but shall think it my duty, if they walk honestly and peaceably, Not
to cause them in the least to suffer for the same. . . ", but ". . . I shall
not, where I have the power, and the Lord is pleased to bless me, suffer the
exercise of the Mass . . . nor . . . suffer you that are Papists, where I
can find you seducing the People, or by any overt act violating the Laws
established; but if you come into my hands, I shall cause to be inflicted
the punishments appointed by the Laws." Cromwell, Oliver, "Declaration of
the Lord Lieutenant of Ireland." (January, 1649) Carlyle, Thomas, Oliver
Cromwell's Letters and Speeches, with elucidations. Boston: Estes and
Lauriat, 1886, Vol. I, Part 5, p. 18.
Act Respecting End of Life Care, Section 30
"Quebec MDs to get euthanasia guide to prepare for legalized
assisted death: Unclear whether other provinces and territories will
adopt a similar practice."The Canadian Press, 1 September, 2015
6. Groenewoud JH, van der Heide A.
Onwuteaka-Philipsen BD Willems DL van der Maas PJ, van der wal G., "Clinical
Problems with the Performance of Euthanasia and Physician-Assisted Suicide
in the Netherlands." N Engl J Med 2000; 342:551-556 February 24,
7. Moore E.
"Doctor is hoping feds will guide on
assisted suicide legislation." Edson Leader, 12 February, 2015.
8. Rich, P. "Physician perspective on
end-of-life issues fully aired." Canadian Medical Association, 19 August,
9. Ubelacker S.
"Medical professionals try to
answer burning questions on doctor-assisted death." Associated Press, 13
10. Kirkey S.
"How far should a doctor go? MDs
say they ‘need clarity' on Supreme Court's assisted suicide ruling."
National Post, 23 February, 2015
11. In the SCC on appeal from the BCCA,
Appellants' Response to Motions to Intervene, 20 June, 2014,
12. Murphy S.
"Re: Joint intervention in
v. Canada -Selections from oral submissions." Supreme Court of
Canada, 15 October, 2014. Joseph Arvay, Q.C. (Counsel for the Appellants).
Protection of Conscience Project.
13. College of Physicians and Surgeons of
Professional Obligations and Human Rights: Frequently Asked
14. Consultations & hearings on Quebec Bill 52,
College of Pharmacists of Quebec:
Dianne Lamarre, Manon Lambert. Tuesday
17 September 2013 - Vol. 43 no. 34,
15. Consultations, College of Pharmacists of Quebec: Dianne Lamarre, Manon Lambert. Tuesday
17 September 2013 - Vol. 43 no. 34,
16. Consultations, College of Pharmacists of Quebec: Dianne Lamarre, Manon Lambert. Tuesday
17 September 2013 - Vol. 43 no. 34,
17. Cimons M.
"Frailty Is a Medical Condition,
Not an Inevitable Result of Aging (Op-Ed)." Livescience, 29 November, 2013.
18. Robertson RG, Montagnini M.
Failure to Thrive." Am Fam Physician. 2004 Jul 15;70(2):343-350
19. Supreme Court of Canada,
Webcast of the
Hearing on 2014-10-15, 35591, Lee Carter, et al. v. Attorney General of
Canada, et al (British Columbia) (Civil) (By Leave). Joseph Arvay, Oral
Submission, 82:49/491:20 - 88:25/491:20
20. Fernandez-Lynch, Holly, Conflicts of
Conscience in Health Care: An Institutional Compromise. Cambridge, Mass.:
The MIT Press, 2008, p. xii-xiii (hereinafter "Conflicts.")
Quoting Veatch, Robert M., The Patient-Physician Relation: The Patient as
Partner, Part 2. Bloomington Indiana University Press, 1991, p. 152.
21. Consultations, Collège des médecins du Québec:
Dr. Charles Bernard, Dr. Yves Robert, Dr. Michelle Marchand. Tuesday 17 September 2013 -
Vol. 43 no. 34, T#154.
22. Schuklenk U, van Delden J.J.M, Downie J, McLean
S, Upshur R, Weinstock D.
Report of the Royal Society of Canada Expert Panel on End-of-Life
Decision Making (November, 2011) p. 101 (Accessed 2015-10-28).
Let their conscience be their guide?
Conscientious refusals in reproductive health care.
24. Canadian Institutes of Health Research,
Conscience Be Their Guide? Conscientious Refusals in Reproductive Health
Care- Project Information.
Government of Canada Establishes External Panel on options for a
legislative response to Carter v. Canada
Panel to consult with stakeholders and all Canadians
July 17, 2015 – Ottawa, ON – Department of Justice.
Minister of Justice and Attorney General of Canada Peter MacKay and Minister
of Health Rona Ambrose announced the establishment of an external panel that
will consult with Canadians on options to respond to the Supreme Court of
Canada's decision in Carter v. Canada.
The panel will conduct consultations with medical authorities and with
interveners in the Carter case to assist the federal government in
formulating a legislative response to the Supreme Court's decision. The
panel will also consult Canadians, including interested stakeholders,
through a public online consultation. The panel will then provide a final
report to the Ministers of Justice and Health that outlines its findings and
options for a legislative response for consideration by the federal
The panel includes three members:
- Chairman, Harvey Max Chochinov, MD, PhD, FRCPC, Distinguished
Professor of Psychiatry and Canada Research Chair in Palliative Care at
the University of Manitoba, and Director of the Manitoba Palliative Care
Research Unit, CancerCare Manitoba;
- Catherine Frazee, D.Litt., LL.D., Professor Emerita at Ryerson
University, where, prior to her retirement in 2010, she served as
Professor of Distinction and Co-Director of the Ryerson-RBC Institute
for Disability Studies Research and Education; and
- Benoît Pelletier, LL.B., LL.M., LL.D., LL.D., Professor of
Law, University of Ottawa, constitutional expert and former member of
the National Assembly of Quebec from 1998 to 2008, and Quebec Cabinet
minister from 2003 to 2008.
On February 6, 2015, the Supreme Court of Canada's decision in Carter
v. Canada held that sections 241(b) and 14 of the Criminal Code
violate the constitutional rights of certain grievously and irremediably ill
adult individuals. These sections of the Criminal Code currently
make it illegal for anyone, including a doctor, to assist in or cause the
death of another person.
The Court ordered that the Criminal Code provisions remain in
force for 12 months to give Parliament time to respond.
The panel's mandate is to consult with Canadians and key stakeholders -
with a focus on the interveners in the Supreme Court case, who represent a
spectrum of diverse perspectives - on considerations relevant to a federal
legislative response to the Carter decision. The Panel will provide
a final report to the Ministers of Justice and Health that outlines its
findings and options for a legislative response for consideration by the
The panel will provide its report to the Government by late Fall 2015. .