Canadian jurisprudence

F.1    Despite its central prominence in the Charter, claims based on the constitutional guarantee of freedom of conscience have received little attention in Canadian courts.

F.2    The earliest case produced a dictionary definition of “conscience”, summed up by the Manitoba Court of Appeal as “self-judgment on the moral quality of one's conduct or the lack of it,” with a further cursory comment, “Disapproval of the thoughts or conduct of another person is not a matter of conscience.”83 Correct as far as it goes, it does not address refusal to collaborate in wrongdoing by another person. The Supreme Court of Canada passed over this reasoning and dismissed the appeal against the ruling because “not one particle of evidence” had been introduced to establish a factual basis for a Charter violation.84

Justice Wilson in R v Morgentaler

F.3    Three years later, Justice Wilson produced what remains the most extensive consideration of freedom of conscience in Canadian jurisprudence in R v Morgentaler (1988).85 She stated that freedom of conscience should be “broadly construed” to extend to “conscientiously-held beliefs, whether grounded in religion or in a secular morality.” Quoting from Big M Drug Mart, Justice Wilson discussed conceptualizations of freedom of conscience, drawn from philosophy, focusing on the integrity and dignity of the individual.86

F.4    Justice Wilson was writing within a philosophical tradition in which an individual who makes conscience claims is unique and identifies as “I” and “me”. That individual has a single identity served by a single conscience that governs their conduct in both their private and professional life. This moral unity is identified as an individual’s “integrity”.87

The principle against servitude

F.5    Key to this tradition is the concept that humans are not a means to an end and must never be exploited by someone as a tool to serve someone else’s good. Justice Wilson’s reasoning in Morgentaler affirmed that the Charter presumes a particular understanding of the individual, who is not “a mere cog in an impersonal machine in which his or her values, goals and aspirations are subordinated to those of the collectivity.” Therefore, the state should not enforce “one conscientiously-held view at the expense of another,” for that is “to deny freedom of conscience to some, to treat them as means to an end, to deprive them…of their ‘essential humanity’.”88 This concept—that humans are not a means to an end—the Protection of Conscience Project calls the principle against servitude. Justice Wilson held that violating it was contrary to principles of fundamental justice.89

“The basic theory underlying the Charter”

F.6    In applying this principle Justice Wilson insisted that, in a free and democratic society, “the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life.” She called this “the basic theory underlying the Charter”,90 a description the Court affirmed unanimously in 1991 by a panel of five judges and by the full bench in 1996.91

F.7    If the principle against servitude is not a principle of fundamental justice (this point has not been judicially considered) it is, like the concept of human dignity, so foundational to human rights and freedoms it is difficult to imagine how a violation of the principle might be justified. Two years after Morgentaler the Supreme Court applied the principle against servitude in striking down a law meant to protect young girls from sexual exploitation. The majority judgement — delivered by Justice Wilson — held that it was fundamentally unjust “to use the innocent as a means to an end” even if there were substantive evidence that the law was effective.92

A framework for adjudication: perfective and preservative freedom of conscience

F.8    A framework for the adjudication of freedom of conscience conflicts can be provided by combining Justice Wilson’s articulation of the principle against servitude in Morgentaler with the recognition that freedom of conscience is exercised in two complementary ways: to pursue an apparent good (perfective freedom) or to avoid an apparent evil (preservative freedom). This does not depend on a particular definition of good or evil.93 It is what Brian Bird describes as “a conduct-focused understanding [that] also accords with the ordinary understanding of conscience” and “safeguards moral integrity without determining whether [they are] moral.”94

F.9    Perfective freedom of conscience is exercised by pursuing an apparent good in accordance with an individual’s conscience. For example, physicians who provide EAS/MAiD because they believe it benefits a patient can be motivated by perfective freedom of conscience.

F.10    Preservative freedom of conscience is exercised by refusing to participate in apparent wrongdoing. For example, through conscientious objection to mandatory military service, a person can preserve one’s own integrity, even if the refusal does not achieve the personal growth that may be possible through acts of generosity, charity or assistance. This refusal preserves rather than develops personal integrity.

Limitations: the primacy and priority of preservative freedom of conscience

F.11    While the state can legitimately limit the exercise of freedom of conscience to safeguard the common good, it does not follow that limits on perfective and preservative freedom of conscience can be justified on the same grounds or to the same extent.

F.12    Preservative freedom of conscience is more fundamental — and more limited — than perfective freedom of conscience. Refusing to do what is believed to be wrong is foundational to personal integrity and necessary for the continuing development of perfective freedom of conscience. Further, an expectation that people will not do what they believe to be wrong is a minimal requirement for social stability. Consistent with this, citizens are expected “to demonstrate some fortitude and to put up a normal resistance” to avoid breaking the law.95

F.13    Limiting perfective freedom of conscience prevents people from doing what they believe to be good. If this infringes their freedom of conscience, the infringement must be demonstrably necessary, minimally impairing and strictly construed.96 Such infringements do not necessarily harm the affected individual, nor necessarily violate the principle against servitude. On the other hand, they may be necessary to ensure equitable management of resources or protect others from harm.97

F.14    In contrast, limiting preservative freedom of conscience by forcing people to do something they believe is wrong, harms the affected individual. For example, an objecting physician believed that she had “no choice” but to obey a directive to make an effective referral for EAS/MAiD. The physician told the legislative committee that “this was destructive to my very core. … I felt like a shell of myself. Months later, I often still do. I came very close to leaving palliative care at the time, and every day I continue to question my ability to stay in this field”.98

F.15    Complicity in wrongdoing triggers what Justice Wilson described as a “response of the whole person”; it elicits an instinctive sense of abhorrence in people, reflecting a reaction to something fundamentally opposed to one’s integrity and dignity.99 The terms moral distress and moral injury refer to the consequences of this kind of assault.100

F.16    Legal coercion may be thought to mitigate or negate a physician’s personal moral culpability because it is the state or the patient making the choice. But this ignores the essential unity of the person. No act is possible unless one chooses to act, meaning we cannot completely separate ourselves from our actions, even if coerced. It disregards the response of the whole person, who knows, forever afterward, that he could have acted differently, and experiences profound guilt.101

F.17    Forcing someone to participate in perceived wrongdoing demands the submission of intellect, will, and conscience, and violates the principle against servitude by reducing that person to the status of a tool to be used by others. This manner of servitude cannot be reconciled with principles of equality. It is an assault on human dignity that deprives its victims of their essential humanity. This reasoning is supported by Justice Wilson in Morgentaler — and by Immanuel Kant,102 British philosopher CEM Joad,103 Jacques Maritain,104 CS Lewis,105 Martin Luther King Jr.106 and Karol Wojtyla.107

The Oakes analysis

F.18    When considering a limitation on freedom of conscience, an Oakes analysis should incorporate the distinction between perfective and preservative freedom of conscience and apply the principle against servitude. The analysis should be informed by four considerations.

F.19    First, if suppression of preservative freedom of conscience is contemplated, it should only be in the most exceptional circumstances where especially compelling evidence justifies it, bearing in mind that violating the principle against servitude cannot be justified even if there were substantive evidence that the law was effective in achieving a legitimate legislative objective.108 Three considerations support this approach.

(a) Refusing to do what one believes to be wrong is ethically normative. It does not violate any prima facie legitimate expectation, nor does it require the cooperation and assistance of others, who remain free to find other ways to satisfy their desires or achieve their goals.

(b) Preservative freedom of conscience is a much more limited freedom, more foundational to society, more fundamental to the good of individuals, and violations of it have profoundly adverse personal effects.

(c) Preservative freedom of conscience cannot be incrementally limited or infringed; it can only be completely suppressed by forcing one to participate in wrongdoing. Suppression (should it be justified) must not be misrepresented as minimally impairing.109

F.20    Second, it would be wrong to suppress preservative freedom of conscience to privilege perfective freedom of conscience. For example, it would be wrong for a court to find a patient’s exercise of perfective freedom of conscience trumps or undermines a physician’s exercise of preservative freedom of conscience.

F.21    Third, unlike infringement of perfective freedom of conscience, violating preservative freedom of conscience will almost certainly violate the principle against servitude. A law contrary to the principles of fundamental justice has never been justified under the Charter and the possibility of justification is remote. The majority of the Supreme Court in Re B.C. Motor Vehicle Act stated that it may be possible, “but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemic, and the like.” The Supreme Court has also suggested that the a violation of a principle of fundamental justice may overcome even substantive evidence favouring the state position.110

F.22    Fourth, suppression can be justified only case-by-case. It cannot be justified in advance by a general rule through legislation, regulation or professional guidelines. There can be no freestanding legal compulsion or duty to do what one believes to be wrong.

Preservative freedom of conscience and institutions

F.23    The discussion above concerns the exercise of freedom of conscience by individuals, but it applies by analogy to entities/collectives like health care facilities, notwithstanding differences arising from the inherent imperfection of analogy.

F.24    In the first place, suppressing the exercise of preservative freedom of conscience by an entity/collective must be understood to mean the suppression of the preservative freedom of conscience of the individuals who belong to it. Doing so puts each of them at risk for the kind of adverse personal reaction described above (F.14–F.16), though the experience of and consequences for each individual is likely to vary.

F.25    Those most affected or threatened by personal dis-integration may react by leaving the entity/collective, which may eventually collapse. Further, the entity/collective may close or abandon the health care facility rather than collaborate in perceived wrongdoing. This would disadvantage patients — especially those seeking health care reflecting the ethos motivating the entity/collective. And it would disadvantage practitioners who had gravitated to the facility precisely because they hoped to provide the best care for their patients without violating their conscientious convictions.111

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Notes

83.    Mackay et al v Manitoba 1985 CanLII 128 (MBCA) at 5.

84.    Mackay v. Manitoba 1989 CanLII 26 (SCC), [1989] 2 SCR 357.

85.    A 2002 case affirmed that the guarantee of freedom of conscience ensures that one can live in accordance with non-religious moral commitments. See Maurice v. Canada (Attorney General), 2002 FCT 69 (CanLII).

86.    Morgentaler, supra note 32 at 176-178, 179-180.

87.    Jacques Maritain, The Person and the Common Good, translated by John J. Fitzgerald (New York: The Scribner Press, 1947) at 46.

88.    Morgentaler, supra note 32 at 164, 179.

89.    Ibid at 180.

90.    Ibid at 166.

91.    R v Salituro, [1991] 3 SCR 654 at para 48; Québec (Curateur public) v Syndicat national des employés de l’Hôpital St Ferdinand, [1996] 3 SCR 211 at para 103.

92.    R v Hess; R v Nguyen, 1990 CanLII 89 (SCC), [1990] 2 SCR 906 (SCC) [R v Hess/Nguyen] at 923–924.

93.    Sean Murphy & Stephen J Genuis, “Freedom of Conscience in Health Care: Distinctions and Limits” (2013) 10(3) J Bioethical Inquiry at 348.

94.    Bird 2018, supra note xx at 120, 126–127; 130. Bird does not use or refer to the terms perfective or preservative.

95.    R. v. Ruzic, 2001 SCC 24 (CanLII), [2001] 1 SCR 687 at para 62.

96.    R v Oakes [1986] 1 SCR 103 at para 64-71.

97.    Sean Murphy et al, “The Declaration of Geneva: Conscience, Dignity and Good Medical Practice” (2020) 66(4) World Med J 41 at 43.

98.    Ontario, Legislative Assembly, Standing Committee on Finance and Economic Affairs, “Medical Assistance in Dying Statute Law Amendment Act 2017” in Official Report of Debates (Hansard) 41st Parl., 2nd Sess., No F-17 (30 March 2017) at F-570.

99.    Morgentaler, supra note 32 at 171. See also Bird 2018, supra note at 124–126, 131–134. Bird is concerned with integrity and identity rather than integrity and dignity, but his discussion of injury to identity can be applied to violations of human dignity.

100.    Mary Kathleen Deutscher Heilman, Tracy J. Trothen, “Conscientious objection and moral distress: a relational ethics case study of MAiD in Canada” (2020) 46(2) J Med Ethics 123-127; Sonya B. Norman & Shira Maguen, “Moral Injury” (25 March, 2025), US Department of Veterans Affairs National Center for PTSD (website).

101.     Hendrik G. Stoker, Conscience: Phenomena and Theories, translated by Philip E. Blosser (Notre Dame, Indiana: University of Notre Dame Press, 2018) at 173. This accounts for the experience of the physician discussed in F.14.

102.    Immanuel Kant, Fundamental Principles of the Metaphysics of Morals, translated by Thomas Kingsmill Abbot, Project Gutenberg (website)at 42.

103.    CEM Joad, Guide to the Philosophy of Morals and Politics (London: Gollanz Ltd. 1938) at 803. Quoted by Justice Wilson in Morgentaler, supra note 6 at 178.

104.    Jacques Maritain, The Rights of Man and Natural Law, translated by Doris C. Anson (New York: Gordian Press, 1971) at p 45, 65.

105.    CS Lewis, “The Humanitarian Theory of Punishment” in Walter Hooper, ed, C.S. Lewis: First and Second Things (Glasgow: William Collins & Sons, 1985) at 101. Lewis was discussing the issue addressed by Justice Wilson and the majority in R v Hess/Nguyen (See text accompanying note 30). He came to the same conclusion.

106.    Martin Luther King Jr, “Letter from Birmingham Jail” (16 April, 1963), The University of Alabama Libraries Special Collections (Box 6623, Folder 4, Local Identifier u0003_0001831_0000007--u0003_0001831_0000007)at p 7–8.

107.    Karol Wojtyla, Love and Responsibility (San Franciso: Ignatius Press, 1993) at 27.

108.    See text accompanying note 92.

109.    Carter SCC 2015, supra note 1 at para 102.

110.    Re B.C. Motor Vehicle Act, [1985] 2 SCR 486 at para 93; R v Hess/Nguyen, supra note 92 at para 28.

111.     Xavier Symons, Why Conscience Matters: A Defence of Conscientious Objection in Healthcare (Routledge: London & New York, 2023) at 125–127, 131–133.