Protection of Conscience Project
Protection of Conscience Project
Service, not Servitude

Service, not Servitude
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The commentaries provided on the website are not a substitute for legal advice provided by a qualified professional. 

General Commentary

Jurisdictional, organizational and regulatory framework for health care delivery in Canada

  • Sean Murphy* | Canadian provinces have constitutional jurisdiction in the regulation of health care and health care professions and over labour and civil rights law within the scope of that jurisdiction. . . .
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Conscience Rights Matter

  • Sohail Gandhi* |  . . To those physicians who are opposed to legal protection for Conscience Rights, let me ask you this.  What would you do if a patient asked you for a referral to have only a blue eyed, blonde haired baby?
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In defence of conscience rights: Bill C-418 

  • David Anderson* | Bill C-418 seeks to amend the Criminal Code to make it an offence to intimidate a medical practitioner, nurse practitioner, pharmacist or any other health care professional for the purpose of compelling them to take part, directly or indirectly, in the provision of physician-assisted suicide. . .
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Nurse diagnosed with PTSD after interacion with patient seeking euthanasia
Tribunal rules "her own convictions" caused her injury: Denies claim for compensation

  • Administrative Labour Tribunal | The worker is a nurse in the palliative care unit of the Notre-Dame Pavilion at the University Hospital of Montreal. In December 2015, a patient for whom she was in charge decided to avail himself of the new provisions of the Act Concerning End-of-Life Care, commonly known as medical assistance in dying. This was a first: he was the first patient of this hospital to express his desire to plan his death. The worker was informed that one of her patients had requested medical intervention to end his life and developed a psychological reaction following the death of the latter. . .
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Conscience Versus the Spirit of the Age

  • Jason Kenney* | . . . This evening I wish to share with you, distinguished members of the bar gathered under the patronage of Saint Thomas More, some thoughts about the importance of conscience in the life of legislators like myself and those who, like yourselves, are charged with the administration and adjudication of those laws. I seek to do so because history in general— and the history of Thomas More in particular —teaches us that the recognition of the rights of conscience is an essential limitation of State power. Put another way, where the rights of conscience are violated, the prospect of a State that unjustly limits liberty becomes all too real throughout history. . .
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"Autonomy", "Justice" and the  Legal Requirement to Accommodate 
the Conscience and Religious Beliefs of Professionals in Health Care  

  • Iain T. Benson* | Frank M. Archer's critical review, though it might seem to some people to be a legal and ethical view is, with respect, neither of these things. While it is, in its way, critical, it does not deal with the legal or ethical principles that are necessary in order to make an informed decision regarding law or ethics in relation to the practice of a profession in general or the question of "emergency contraceptives" in particular. . .
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Eternal Vigilance is the Price of Conscience Protection:
The Freedom of Conscience in Relation to "Health"

  • Iain T. Benson* | . . .Apparently this medical student has been threatened with loss of graduation if, because of his stated religious reasons, he will not offer abortion as an option to a patient. In terms of the legal requirement, the issue is whether or not a physician is required to refer a patient for an abortion. . . .
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"Do Not Resuscitate": Whose Choice?  
Court Gives Course In Medical Ethics To The Public Trustee

  • Iain T. Benson* Brad. B. Miller* | . . .Can a doctor or health care facility legally issue a "do not resuscitate" order if the patient or the patient's guardian refuses to consent to that order? What are the obligations of the Public Trustee's office with respect to consenting or opposing "do not resuscitate orders? . . .
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The Courts' Spectacles:
Some Reflections on the Relationship between Law and Religion in Charter Analysis

  • Mr. Justice David M.Brown* | . . .The main point which I wish to make in this paper is that when courts engage in this "managing" exercise they do not operate as philosophically-neutral actors. Instead, the case law reveals that they perform the "managing" exercise through philosophical lenses that are not blank, but reflect philosophical choices which inform their balancing task. . .[
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In Defence of the New Heretics: A Response to Frank Archer
Responding to Archer F. Emergency Contraceptives and Professional Ethics.
Canadian Pharmaceutical Journal, May 2000, Vol. 133, No. 4, p. 22-26

  • Sean Murphy* | Before taking action that they may later regret, those who would coerce or discriminate against conscientious objectors, or drive them from the practice of pharmacy, would do well to revisit Frank Archer's critical review . . . Although many pharmacists have accepted the review as a definitive ethical statement, it is insufficient warrant for repression of freedom of conscience within the profession. . .
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Postscript for the Journal of Obstetrics and Gynaecology Canada:
Morgentaler vs. Professors Cook and Dickens
Responding to Cook RJ, Dickens BM, "In Response". J.Obstet Gyanecol Can 2004; 26(2)112;  Cook RJ, Dickens BM, Access to emergency contraception [letter] J.Obstet Gynaecol Can 2004; 26(8):706.

  • Sean Murphy* | . . . the arguments of Professors Cook and Dickens for mandatory referral are unsupported and even contradicted by their own legal and ethical references. Regulatory officials with the power to enforce the views of Cook and Dickens are unlikely to discover this in the pages of the Journal, since, by editorial fiat, the discussion was terminated with the publication of their 'final word' on the subject. Here, then, is the postscript to the discussion, supplemented by developments in the United Kingdom and Belgium that have a bearing on the issue. . .
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Commentary on Cecilia Moore's Case 

  • Sean Murphy* | The following commentary concerns the case of Cecilia Moore, a welfare worker who was fired for refusing to authorize medical coverage for an abortion. . .
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Re: Euthanasia and Assisted Suicide

Legalizing therapeutic homicide and assisted suicide:  
A tour of Carter v. Canada

  • Sean Murphy* | The trajectory of the trial was determined by the unchallenged fundamental premise that suicide can be a rational and moral act, and that the sole purpose of the law against assisted suicide is to prevent suicides by vulnerable people in moments of weakness, who might be tempted to commit suicide that is not rational and moral. The only issue was whether or not safeguards could be designed to permit legitimate access to assisted suicide, while preventing the vulnerable from accessing it in moments of weakness. . .
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Project Backgrounder
Re: Joint intervention in Carter v. Canada
Supreme Court of Canada, 15 October, 2014

  • In June, 2012, a British Columbia Supreme Court Justice ruled in favour of physician assisted suicide and euthanasia. The plaintiffs appealed to the Supreme Court of Canada.
  • 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 a ten minute oral presentation.
    Factum | Backgrounder

Supreme Court of Canada orders legalization of physician assisted suicide - AND euthanasia
Physicians unwilling to kill already face demands that they find someone who will

  • Sean Murphy* | In a 9-0 ruling released on 6 February, 2015, the Supreme Court of Canada struck down two sections of Canada’s Criminal Code "insofar as they prohibit physician-assisted death" in circumstances outlined by the Court. It appears that most or all of the major media outlets understood this to mean that the Court had legalized physician assisted suicide. . . the ruling not only permits physician assisted suicide, but physician administered euthanasia. . .
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Decriminalization of assisted suicide and the violation of our rights

  • Albertos Polizogopoulos* | In October, the Supreme Court of Canada heard the Carter case, where parties are challenging Criminal Code prohibitions on physician assisted suicide in the hopes of decriminalizing it. If they're successful, it will impact more than just physicians. . .
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Amir Attaran and the elves
A law professor makes much ado

  • Sean Murphy* |  . . . University of Ottawa law professor Amir Attaran asserts that the "corrosive hostility" of the Canadian Medical Association to "physician-assisted dying" is evident in its "cowardly and stupid" position on the procedure. . . In his telling, ever since the Court ignored the threat and struck down the law, the CMA has been acting like a "sore loser," trying to persuade physicians not to participate. . . And he complains that the CMA won't force physicians unwilling to kill patients or help them commit suicide to find someone who will. . .
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A "uniquely Canadian approach" to freedom of conscience
Provincial-Territorial Experts recommend coercion to ensure delivery of euthanasia and assisted suicide
Recommendations designed to broaden and maximize impact of Supreme Court ruling

  • Sean Murphy* |  The Experts' recommendations are intended to extend and maximize the impact of the Carter ruling. They will effectively require all institutions, facilities, associations, organizations and individuals providing either health care or residential living for elderly, handicapped or disabled persons to become enablers of euthanasia and assisted suicide. This will entail suppression or significant restriction of fundamental freedoms. . .
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To kill — or not to kill? That is the question.
An answer for a Dying With Dignity clinical advisor

  • Sean Murphy* | . .>the DWD Clinical Advisor was exasperated by the description of euthanasia and assisted suicide as "killing." This, he/she exclaims, is a malicious lie that adds to the world's misery.  Such a cri de cœur calls for a thoughtful discussion of the question it raises. Does providing euthanasia and assisted suicide entail killing — or does it not?
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Jewish physicians' freedom of conscience and religion and the Carter Case

  • Charles Wagner*, Adam Hummel* | How does the decision in the Supreme Court of Canada (SCC) in Carter v. Canada (Attorney General)1 ("Carter") impact on the religious Jewish doctor? Will this landmark decision bring into conflict these doctors' freedom of conscience and religion with their professional obligations? The Carter case sets aside federal criminal laws as they relate to physician assisted suicide. It stands for the proposition that individuals who are suffering unbearably have a constitutional right to a physician-assisted suicide.
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Conscience, euthanasia and assisted suicide in Manitoba
The Medical Assistance in Dying (Protection for Health Professionals and Others) Act

  • Sean Murphy* | . .The MAiD Act is a procedure-specific law applying only to euthanasia and assisted suicide. It protects all regulated professionals who refuse to provide or "aid in the provision" of the procedures from professional disciplinary proceedings and adverse employment consequences because they have refused. They remain liable for other misconduct in relation to the refusal. 
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Quebec’s Act Respecting End of Life Care
Reportable and non-reportable euthanasia

  • Sean Murphy* | . .Quebec's euthanasia law, the Act Regarding End of Life Care (ARELC), permits two kinds of euthanasia, distinguished here as reportable and non-reportable euthanasia. . .
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Re: "Abortion: Ensuring Access"

  • In July, 2006, the Canadian Medical Association Journal published a guest editorial by Sanda Rodgers of the Faculty of Law, University of Ottawa, and Jocelyn Downie, of the Health Law Institute, Dalhousie University, Halifax, Nova Scotia.  The editorial appears to have been an attempt to bully objecting physicians who refuse to refer patients for abortion by menacing assertions about legal and ethical obligations.  The CMAJ is a publication of the Canadian Medical Association, which, however, asserts that its contents do not necessarily represent the views of the Association.
    Commentary (Ethics)

Re: Draft Code of Ethics for Pharmacists and Pharmacy Technicians

Yet More Pharmacists Who Don't Understand Ethics:  This Time Ontario

  • Iain T. Benson* | . . . For pharmacists and pharmacy technicians the accommodation of religious belief and conscience guaranteed by Section 2 of the Canadian Charter of Rights and Freedoms will be suspended should this principle go ahead as drafted. This is not the approach taken by doctors and the Canadian Medical Association would not endorse this blunt and unfair kind of principle. . .
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Letter to Minister of Health (Ontario)

  • Protection of Conscience Project | . . .I understand that the Ontario College of Pharmacists has made a recommendation to the OHPRAC to the effect that freedom of conscience ought to be denied to pharmacists and pharmacy technicians. I am advised by concerned pharmacists that those who would have objected to this were unaware that the College was contemplating such a recommendation and were not consulted about it. . .
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Re:  "Physicians and the Ontario Human Rights Code"

Ontario Human Rights Commission attempts to suppress freedom of conscience

  • Sean Murphy* | The College of Physicians and Surgeons of Ontario is the regulatory and licensing authority for physicians and surgeons practising in Ontario, Canada.  In February, 2008, the Ontario Human Rights Commission recommended that the exercise of freedom of conscience by physicians be restricted.  The College then drafted a policy that demanded that Ontario physicians sacrifice their freedom of conscience to avoid prosecution by Ontario's human rights apparatus.
    Commentary (Ethics)

Freedom of Conscience and Human Rights

  • Michelle Davis* | A series of Bioethics Matters will look at the Ontario Human Rights Commission, the Ontario Human Rights Code, and the Canadian Charter of Rights and Freedoms to explore the issues of religious discrimination, the right to be free from discrimination based on creed (religion), and the freedom of conscience and religion. . .
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The New Inquisitors

  • Sean Murphy* | . . . OHRC agents have broad powers to enter private property without warrant, and can, without warrant, search premises, examine, measure, photograph the area and and seize they think relevant to the investigation. . . police can be called upon to assist, using force if need be. . .All of this for the purpose of investigating, not unlawful conduct, but mere "tension or conflict," or conditions that might lead to either. In contrast, Canadian police have far less power to investigate criminal offences - including murder. . .
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Re:  College of Physicians and Surgeons of Ontario and "effective referral"

Ontario court affirms right of state to compel participation in euthanasia
Doctors must refer patients for 'medical assistance in dying'

  • Michael Cook* | Back in 2006, Oxford University's Professor Julian Savulescu published a frontal attack on the notion of conscientious objection in medicine in the BMJ, a popular medical journal. At the time it seemed odd rather than dangerous, the dream of an ideologue rather than sober policy.  . . .
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With Ontario court's ruling on doctors, the revolution continues
There is a growing antipathy among Canadian elites against conscientious individuals who refuse to accept their views

  • Barry W. Bussey* | How is it that such a simple decision could be made so complicated? Given the history of accommodating individual conscience in the medical profession and in Canadian law, the case before the Ontario Court of Appeal to accommodate doctors' consciences was a "no-brainer." The law, history, and basic human decency cried out: "Accommodate the physician!" Instead, the highest court in Ontario followed the worrying legal revolution against accommodation and stomped on conscience. . .
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Forced Referral and Freedom of Religion vs Freedom of Conscience
Without freedom of conscience our free democracy would not exist

  • Shawn Whatley, MD* | A recent court decision in Ontario missed the mark when it ignored the impact forced referral has on freedom of conscience.  On May 15, the Ontario appeals court ruled that doctors must give patients a referral for euthanasia, abortion, and other contentious issues, regardless of what an individual doctor thinks about them. . .
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Physicians in Canada should be moral actors, not robotic bureaucrats
Doctors should not be obliged to write referrals for procedures they find morally objectionable

  • Brian Bird* | Earlier this week, Ontario's highest court heard a case that pits access to health care against the moral convictions of doctors. The case essentially tests the extent to which Canadians can follow their own moral compasses while operating in a professional capacity.  In Ontario, doctors can refuse to perform procedures or prescribe drugs that they consider immoral. However, the public body that regulates these doctors – the College of Physicians and Surgeons of Ontario (CPSO) – requires them to refer patients to doctors who are willing and able to provide the requested health care service. . .
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Understanding Freedom of Conscience

  • Brian Bird* | A court case dealing with freedom of conscience gives rise to questions about what freedom of conscience protects and why we protect it. . . . Balancing physicians' freedom of conscience with patients' access to medical services is a delicate task. But that balance will certainly not be struck if, when it comes to freedom of conscience, we do not know what we are talking about or why it matters.
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Physicians, conscience, and assisted dying:
By requiring that physicians make referrals for assisted dying, Ontario is forcing them to leave medicine or abandon their ethical framework.

  • Deina Warren,* Derek Ross* | Of all the jurisdictions worldwide that permit some form of assisted suicide, Ontario stands alone in mandating that physicians participate in it. . . [C]ompelling physicians to participate in MAID results in the state deciding what everyone should believe; and second, it undermines physicians' moral integrity, a foundational component of medical ethics and principled health care. . .
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Ontario must amend its assisted dying legislation to recognize conscience rights

  • John Milloy* | Canadians ask a lot of our physicians – years of education, long hours, complex cases and demanding patients (full disclosure – I am married to a doctor).  Since June of last year, we have also been asking them to help some of their patients take their own lives. . . Should we not respect the fact that some doctors and other health-care providers simply don't want to be involved in assisted dying for reasons of conscience?
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Re:  Redefining the Practice of Medicine

Euthanasia in Quebec
An Act Respecting End of Life Care (June, 2014)

  • Sean Murphy* | Part 1: Overview - An Act Respecting End-of-Life Care ("ARELC") is intended to legalize euthanasia by physicians in the province of Quebec.  It replaces the original Bill 52, the subject of a previous commentary by the Project.  The original text of the Bill 52 did not define medical aid in dying (MAD), but ARELC now makes it clear that Quebec physicians may provide euthanasia under the MAD protocol.  . .
    Part 1
  • Part 2: ARELC in detail - An Act Respecting End-of-Life Care ("ARELC") is intended to legalize euthanasia by physicians in the province of Quebec.  It replaces the original Bill 52, the subject of a previous commentary by the Project. ARELC purports to establish a right to euthanasia for a certain class of patients by including it under the umbrella of "end-of-life care." . . .
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  • Part 3: Evolution or Slippery Slope? - Euthanasia laws frequently include guidelines and safeguards intended to prevent abuse.  Eligibility criteria are the most basic guidelines or safeguards.  In considering their stability, it is important to consider not only the elasticity of existing statutory provisions, but recommendations for expansion that might ultimately result in changes to the law. . .
    Part 3
  • Part 4: The Problem of Killing - The original text of Bill 52 did not define "medical aid dying" (MAD), but it was understood that, whatever the law actually said, it was meant to authorize physicians to kill patients who met MAD guidelines.  The Minister of Health admitted that it qualifed as homicide, while others acknowledged that MAD meant intentionally causing the death of a person, and that its purpose was death. . .
    Part 4
  • Part 5: An Obligation to Kill - Statistics from jurisdictions where euthanasia and/or assisted suicide are legal suggest that the majority of physicians do not participate directly in the procedures.  Statistics in Oregon and Washington state indicate that the proportion of licensed physicians directly involved in assisted suicide is extremely small. . .
    Part 5
  • Part 6: Participation in Killing - It appears that, even where euthanasia or assisted suicide is legal, the majority of physicians do not actually provide the services.  However, by establishing a purported legal "right" to euthanasia, ARELC generates a demand that physicians kill their patients, despite the high probability that a majority of physicians will not do so. . .
    Part 6
  • Part 7: Refusing to Kill - It is important identify problems that the Act poses for those who object to euthanasia for reasons of conscience, and to consider how objecting health care workers might avoid or respond to coercion by the government and the state medical and legal establishments . . .
    Part 7
  • Part 8: Hospitality and Lethal Injection - Under the Act Respecting End of Life Care (ARELC) palliative care hospices may permit euthanasia under the MAD protocol on their premises, but they do not have to do so.  Patients must be advised of their policy before admission.  The government included another section of ARELC to provide the same exemption for La Michel Sarrazin, a private hospital.  The exemptions were provided for purely pragmatic and political reasons. . .
    Part 8
  • Part 9: Codes of Ethics and Killing - Refusing to participate, even indirectly, in conduct believed to involve serious ethical violations or wrongdoing is the response expected of physicians by professional bodies and regulators.  It is not clear that Quebec legislators or professional regulators understand this. . .
    Part 9
  • Quebec Euthanasia Guidelines: Practice guide issued by Quebec health care profession regulators (August, 2015)