Appendix "C"

Full Text

C.1    The subject of this submission is exclusively an institution's refusal to provide or facilitate euthanasia/assisted suicide (EAS/MAiD) for reasons of conscience: the exercise of preservative freedom of conscience— refusing to do what one believes to be wrong (see Appendix “F”) .

C.2    Refusal may reflect unwillingness to be complicit in, cooperate in or otherwise support or encourage the killing of patients and a desire to prevent harm to others - understood from the perspective of an objecting entity/collective. This includes the harm of leading others to believe that EAS/MAiD is morally acceptable or encouraging others to seek it.

C.3    “Institution” in the sense relevant here is an entity that always manifests a collective enterprise by individuals. The collective action of individuals is easily obscured by terms like “corporation” and “entity,” the term “entity/collective” is used to keep this in mind.

C.4    Law has imbued collectives with characteristics normally associated with individual persons since ancient times.33 These legal developments recognized the natural inclination and need for persons to work collectively to achieve important personal and social goods.

C.5    Legal recognition that entities/collectives providing health care are moral agents entitled to exercise freedom of conscience is fully consistent with this tradition, even though the moral agency of an entity and individual person differ in some respects. It makes no sense to hold that individuals are entitled to exercise freedom of conscience, but lose that freedom when they join someone else in a collective enterprise intended to put into practice beliefs informing the exercise of that freedom.

C6.    Moreover, entities/collectives like the Canadian Medical Association (CMA) and the Canadian Rottweiler Club ingrain foundational ethical or moral beliefs into codes of ethics that govern their members and operations. The CMA would presumably claim constitutional protection should their right to do so be challenged.34,35 There is no principled reason to deny the same freedom to entities/collectives operating health care and related facilities.

C.7    Finally, the concept of organizational ethics developed since the 1990's36 demonstrates that it is reasonable to consider entities to be ethical actors.37, 38

C.8    For all of these reasons, this submission presumes that entities/collectives are entitled to rely upon constitutional guarantees of freedom of conscience, notwithstanding differences between individuals and collectives in the exercise of that freedom. It does not follow from this that factors relevant to moral decision-making by entities/collectives are identical to those affecting the exercise of freedom of conscience by individuals, or play out in the same way. The concept of individual freedom of conscience is applied analogically to entities/collectives, so some differences are to be expected.

C.9    This conclusion is supported by the comments of Justice Beetz in R v. Morgentaler in relation to freedom of conscience and religion, cited in Carter v. Canada (Attorney General) and discussed in Appendix “B”. It is also consistent with jurisprudence recognizing that Section 2(a) of the Charter guarantees freedom of religion to entities/collectives39 and that it guarantees freedom of conscience and religion to entities/collectives.40

Further reading:

Sean Murphy, “Institutional freedom of conscience in relation to euthanasia and assisted suicide” (7 November 2024), Protection of Conscience Project (website).

Notes

33.    Philip J Stern, "The Corporation in History" in Grietje Baars & Andre Spicer, eds, The Corporation (A Critical, Multi-Disciplinary Handbook) (Cambridge: University Press, 2017).

34.    The Canadian Medical Association, CMA Code of Ethics and Professionalism, Ottawa: CMA, 2018.

35.    The Rottweiler Club of Canada, The Rottweiler Club of Canada Incorporated Code of Ethics, Edmonton: RCC, 2021.

36.    Robert T Hall, “Organizational Ethics in Healthcare” in Encyclopedia.com (2022).

37.    Fiona Mcdonald, Christy Simpson & Fran O’Brien, “Including Organizational Ethics in Policy Review Processes in Healthcare Institutions: A View from Canada” (2008) 20(2) Healthcare Ethics Committee Forum 137.

38.    Paul R Rao, “Ethical Considerations for Healthcare Organizations” (2020) 41(3) Seminars in Speech and Language 266.

39.    R. v. Big M. Drug Mart Ltd.[1985] 1 SCR 295 at para 96; Alberta v Hutterian Brethren of Wilson Colong, 2009 SCC 37 at para 89 (per McLachlin CJ, for the majority); Loyola High School v Quebec (Attorney General), 2015 SCC 12 at paras 59–60 (per Abella J, for the majority).

40.    R v WH Smith, 1983 CanLII 3652 (ABCJ).