Appendix "B"

Full Text

B.1    In Carter v Canada (Attorney General) the Supreme Court of Canada cautioned Parliament, regulators and provincial legislatures that a physician’s decision to participate in euthanasia or assisted suicide (which includes but is broader than providing the services) was a matter of conscience and sometimes religious belief.31 On this point it cited the comments of Justice Beetz in R v Morgentaler about “participation in abortion”. Presumably the Court cited Justice Beetz’ comments because it considered what he had to say particularly relevant to the reconciliation of physician and patient rights. However, while the Court’s assertion of the need for reconciliation is often quoted, what Justice Beetz actually said about physician rights in Morgentaler has been neglected.

B.2    Justice Beetz observed that

• hospitals were not obliged to appoint therapeutic abortion committees;

• the law could neither force [unwilling] hospitals to appoint therapeutic abortion committees nor force [unwilling] physicians to perform abortions because decisions about participation in abortion involved judgements of conscience and religious belief.32

B.3    The first point to note is that Justice Beetz obviously assumed that collective entities like hospitals were constitutionally protected in the exercise of freedom of conscience and freedom of religion in relation to abortion. Consistent with this, the Project argues that health care facilities are constitutionally protected in the exercise of freedom of conscience and freedom of religion in relation to EAS/MAiD.

B.4    Second, a hospital’s refusal to form therapeutic abortion committees was a refusal to indirectly participate in abortion (inasmuch as their role was limited to approving the procedure), while the refusal of a physician to perform an abortion was a refusal to directly participate.

B.5    Hence, the comments of Justice Beetz to which the Supreme Court referred in Carter clearly reflect the view that the law cannot override freedom of conscience or religion by requiring either direct or indirect participation in abortion. Consistent with this, the Project holds that compelling unwilling hospitals or practitioners to directly or indirectly participate in EAS/MAiD is a violation of freedom of conscience, not a compromise. Compelling indirect participation in EAS is not a constitutionally valid ‘solution’ for the purported ‘problem’ of an inability to compel direct participation in the services.

Notes

31.    Carter SCC 2015, supra note 2 at para 132. The Court used the term “assisted dying” to refer to euthanasia and assisted suicide.

32.    R v Morgentaler (1988) 1 SCR 30 at 95-96.