Project Backgrounder
Re: Joint intervention in Carter v. Canada
Supreme Court of Canada,
15 October, 2014
Sean Murphy*
Introduction:
In June, 2012, a British Columbia Supreme Court Justice struck
down Canada's absolute ban on assisted suicide as well as the
rule that one cannot legally consent to be murdered. The
decision pertained only
to cases of physician-assisted suicide or homicide.1 The ruling was overturned in the Court of Appeal of
British Columbia in a 2/1 decision.2
The plaintiffs
appealed to the Supreme Court of Canada.
In a 1993 decision in Rodriguez v. British
Columbia (Attorney General)3
the Supreme Court of Canada upheld the constitutional validity of the law against
assisted suicide. Since the circumstances in the Carter
case are very similar, the current appeal involves important questions about
the legal rule of stare decisis: the
practice of lower courts being bound by higher courts' rulings.
Two further developments since the trial and appellate court
decisions add to the significance of the case.
First, the province of Quebec has passed a
provincial statute
that purports to legalize euthanasia by physicians, claiming, in that respect,
that provincial jurisdiction over health care
trumps federal jurisdiction in criminal law. The same
claim was originally made by the plaintiffs.4 They did not
pursue it at trial or in the Court of Appeal, but have
resurrected it in this appeal.5 Second, the Canadian
Medical Association has withdrawn its official opposition to
physician assisted suicide and euthanasia.6
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.
In the event that the Supreme Court of Canada strikes down the
criminal law as it relates to euthanasia or assisted suicide, the
interveners
urged the Court to "make clear to the legislature that any legislation
in this area must protect the freedom of conscience of healthcare
providers," ensuring that "healthcare providers are not directly or
indirectly coerced into becoming parties to killing patients or
assisting patients kill themselves."
Related materials:
1. A legal right to euthanasia by physicians or
physician assisted suicide implies that physicians sometimes have an
obligation to kill patients or help them kill themselves,7 and that others
may be obliged to facilitate this.
2. An obligation to at least facilitate
euthanasia and assisted suicide is implied in the appellants' notice of
claim, in their factum, in testimony at trial, in a report accepted as
evidence at trial, and in the rights claims advanced.
3. For moral or religious reasons, an
undetermined number of healthcare providers will refuse to participate in
killing patients. Their beliefs reflect current Canadian law. A ruling in
favour of the appellants would have a detrimental effect upon the
fundamental freedoms of these healthcare providers if not accompanied by robust protection freedom of
conscience and religion.
4. Only a minority of physicians actually kill
patients or assist in suicide even where the procedures are legal. Most of
the conflicts resulting from legalization of assisted suicide or euthanasia
will probably be precipitated by refusal to participate indirectly in
killing, or by discrimination against objecting health care providers.
At least initially, most efforts to suppress freedom of conscience will be
directed to forcing physicians to facilitate killing by referral or other
means.
5. In discerning reasonable limits to freedom of
conscience and religion, the distinction between belief and conduct, while
valid, is insufficient. A further distinction must be made between
perfective and preservative freedom of conscience.
6. The state may sometimes limit perfective
freedom of conscience by preventing people from doing what they believe to
be good. However, to suppress preservative freedom of conscience by forcing
people to do what they believe to be wrong is fundamentally unjust,
offensive and dangerous. If the limitation of preservative freedom of
conscience can be justified, it will only be as a last resort and in the
most exceptional circumstances. An exceptionally cautious approach is
proportionate to the potentially dangerous consequences of imposing a duty
to do what is believed to be wrong.
7. Moreover, the law should not suppress a
plausible moral worldview in favour of one that is less plausible. If both
of the conflicting worldviews are equally plausible, or if the issue is in
doubt, both must be accommodated.
8. If one insists that ordering principles that
inform public policy should be empirically verifiable whenever possible and
capable of logical and coherent development, it would seem that correct
legal and moral reasoning ought to acknowledge the essential primacy of
dependency as an ordering principle, not autonomy. Alternatively, if
autonomy-centred and dependency-centred worldviews are considered equally
plausible, both should be accommodated. In either case, there is no
justification for using the coercive power of law to suppress or
disadvantage moral worldviews like those exemplified in Christian, Islamic
and Jewish medical ethics or in other cultural or religious traditions.
9. The assertion of a legal right to euthanasia
or assisted suicide is explicit in Quebec's Act Respecting End of Life
Care8 and in the claims advanced
by the appellants.9 This implies that, in some
circumstances, physicians should have a legal and/or professional obligation
to kill a patient or to help a patient kill himself. Statements by the
past and current presidents of the Canadian Medical Association concerning
the Association's change of policy on euthanasia and assisted suicide can be
understood to support that view.10
10. An implied obligation to assist in killing
extends to those whose participation is reasonably necessary if physicians
are to fulfil their own obligation to kill, even if they do not participate
directly in the lethal act: pharmacists, for example.11
11. An obligation to kill must be distinguished from the authority to
use potentially deadly force by the police or military, or the justification
for the use of potentially deadly force in self-defence. In the latter
cases, the law recognizes that death resulting from the use of deadly force
may sometimes be so highly probable as to be predictable. Nonetheless,
neither the authority to use deadly force nor legal justifications for it
involve an obligation to kill. Someone who shoots a deadly aggressor in
self-defence may not administer a coup-de-grâce if the first shot is merely
disabling. There is no obligation to kill even in military combat;
deliberately killing disabled enemies is a crime.12
12. Since an obligation to kill is not imposed even upon people whose
professional obligations may entail responsibility for killing, to impose
upon physicians an obligation to kill would be unique and extraordinary,
though not unprecedented. An obligation to kill was formerly imposed on
public executioners. The essence of that obligation was captured by
Blackstone's explanation that "if, upon judgment to be hanged by the neck
till he is dead, the criminal be not thoroughly killed, but revives, the
sheriff must hang him again."13
13. That is what an obligation to kill would
require of a physician. If a lethal injection failed to cause death, a
physician would have to inject him again, or take additional steps to ensure
the patient is "thoroughly killed." This 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."14
It is also implied in the reasoning of the American Medical Association,
which forbids physicians to participate in executions even by pronouncing
death.15
14. It would thus seem to be difficult to
legalize physician-assisted suicide without also legalizing euthanasia.
In the case of a
failed assisted suicide that incapacitates a patient, it could be argued
that the physician who contracted to help the patient kill himself is
obliged to fulfil the contract by providing euthanasia. The argument
would have greater force if the patient had sought assisted suicide to avoid
the kind of incapacitation caused by the failed suicide attempt.
15. For reasons of conscience or religion, an
undetermined number of Canadian healthcare will refuse to directly or
indirectly participate in the
killing of patients or suicide. Their views are consistent with the current
Canadian legal framework, and with an undetermined proportion of the
population they serve.
16. A ruling in favour of the appellants would
have a detrimental effect upon the fundamental freedoms of these health care
providers, unless the Court directs that robust protection be provided for
them. Such direction should clarify principles needed to correct a dangerous
error that has become increasingly widespread: that the state or a
profession may impose upon people a duty to do what they believe to be wrong
- even if that means killing people.
17. The trial judge stated that there was no need
to consider the situation of objecting health care providers, since the
plaintiffs did not assert that physicians should be compelled to provide
euthanasia or assist in suicide.16 The appellants opposed this intervention
for the same reason.17
18. However, this is a misplaced objection. In
fact, only a minority of physicians - sometimes a very small minority -
actually kill patients or assist in suicide even where the procedures are
legal.18 Moreover, most euthanasia/assisted suicide supporters do not insist
that objecting physicians personally kill patients or assist in suicide.19
Instead, they demand that objectors become parties to euthanasia or assisted
suicide by referral or other means.20
19. Identical demands have been made for years
concerning other morally contested procedures, like abortion.21 Thus, most of
the conflicts adverse effects experienced by objectors resulting from a
ruling in favour of the appellants will probably be precipitated by refusal to participate
indirectly in killing,22 or when they
are denied employment hospital privileges or excluded from palliative care
units,23 just as
qualified maternity nurses are now denied employment in at least one major
Canadian maternity hospital if they are unwilling to assist with abortion.24
20. An obligation to at least
facilitate euthanasia and assisted suicide was implicit in the appellants' factum.25
It was implicit in the appellants' notice of claim26
and in the testimony of a plaintiff witness, Professor Margaret Battin, who implied that a physician's refusal to
provide assisted suicide or euthanasia would amount to unethical abandonment
of patients.27
It appears as an explicit assertion in a report28
introduced as evidence by the appellants.29
Professor Jocelyn Downie, one of the authors of the report, instructed the
appellant's expert witnesses.30
21. Professor Downie and colleagues have drafted
a Model Conscientious Objection Policy for Canadian physicians.
Should euthanasia or assisted suicide be permitted, their policy would
require physicians unwilling to kill patients themselves to "make a referral
to another health care provider who is willing and able to accept the
patient and provide the service."31
Moreover, should the delay involved jeopardize the patient's
"well-being," the model insists that physicians personally provide "legally
permissible and publicly funded" services (i.e., kill the patient or assist
in suicide), "even in circumstances where the provision of health services
conflicts with physicians' deeply held and considered moral or religious
beliefs."32
22. Finally, the issue is embedded in the rights
language that permeates the lower court rulings and arguments advanced by
the parties. This language encourages claims that, in the name of human
rights, physicians have a duty to do what they believe to be wrong, an
extreme position exemplified by a statement of the Ontario Human Rights
Commission (OHRC):
It is the Commission's position that doctors, as
providers of services that are not religious in nature, must essentially
"check their personal views at the door" in providing medical care.33
23. The OHRC (and others) justify this assertion
by quoting a statement of the Supreme Court of Canada: "the freedom to hold beliefs is
broader than the freedom to act on them."34
24. The statement is certainly correct, but it
not responsive to all of the questions that arise about freedom of
conscience and religion in a pluralistic democracy. With respect, the Court
cannot have intended the remark to become a mantric solution for every
problem arising from the exercise of freedom of conscience or religion. More refined distinctions are required.
25. One of them is the distinction between
perfective and preservative freedom of conscience, reflecting the two
ways in which freedom of conscience is exercised: by pursuing apparent goods
and avoiding apparent evils.35
26. It is generally agreed that the state may limit the exercise of
perfective freedom of conscience by preventing people from doing what they
believe to be good, if it is objectively harmful, or if the limitation
serves the common good. There is disagreement about the application of these
principles, but no polity could survive without restrictions of some sort on
human acts, so some limitation of perfective freedom of conscience is not
unexpected.
27. Though the state may limit perfective freedom of conscience, it
does not follow that it is equally free to suppress preservative freedom of
conscience by forcing people to do what they believe to be wrong.
28. As a general rule, it is fundamentally unjust
and offensive to force people to support, facilitate or participate in what
they perceive to be wrongful acts; the more serious the wrongdoing, the
graver the injustice and offence. It is a policy fundamentally opposed to
civic friendship, which grounds and sustains political community and
provides the strongest motive for justice. It is inconsistent with the best
traditions and aspirations of liberal democracy, since it instills attitudes
more suited to totalitarian regimes than to the demands of responsible
freedom.
29. Preservative freedom of conscience is not
unlimited. In fact, it is, to begin with, a much more limited form of
freedom of conscience that is far less demanding of society. But it is more
essential to individual integrity and society, so that even the strict
approach taken to limiting other fundamental rights and freedoms is
insufficiently refined to be applied to it. Like the use of potentially
deadly force, if the limitation of preservative freedom of conscience can be
justified, it will only be as a last resort and only in the most exceptional
circumstances.
30. This exceptionally cautious approach is
proportionate to the potentially serious consequences of imposing a duty to
do what is believed to be wrong. For example, some who support the "war on
terror" posit a "duty to do what is wrong," including a duty to kill
non-combatants and to torture terrorist suspects.36 Within the context of this
appeal, the ultimate consequences of suppressing preservative freedom of
conscience are crystalizing in Quebec, where a purported right to euthanasia
has been enacted in the Act Respecting End of Life Care (ARELC),
which the appellants recommend as an example of an
appropriate exercise of provincial jurisdiction.37
31. Quebec is the only province in which the
medical regulator has made the mistake of including duty to do what one
believes to be wrong in a code of ethics. Supporters of ARELC, citing the
Collège des médecins du Québec Code of Ethics,
insist that physicians unwilling to kill patients must help find a colleague
who will.38
32. If ARELC is found to be constitutional, some physicians will begin to kill patients, while
physicians opposed to killing patients will refuse to kill patients or
encourage or facilitate the killing of patients by counselling, referral or
other means. Objectors would, despite the law, continue to view euthanasia
as planned and deliberate murder.
33. At this point, the unique character of the
'duty to do what is wrong' movement comes into focus. It is not sufficient
to simply encourage and allow willing physicians to kill patients.
Physicians are to be compelled to become parties to the killing of patients,
even if they believe it to be wrong - even if they believe it to be murder -
and will be punished if they refuse.
34. This is quite extraordinary, even if there
are precedents for it.39 To hold that
the state can rightfully compel citizens become parties to what they see as
murder, and justly penalize them if they refuse, surely goes beyond anything
that could possibly have been intended by the Supreme Court in Trinity Western University v. College of
Teachers.
35. This demonstrates the need to distinguish
between perfective and preservative freedom of conscience, to insist that
the burden lies upon the state to prove that reasonable accommodation of
preservative freedom of conscience is impossible, and to set the standard of
proof that must be met by the state at an exceptionally high level, the
rules for the use of deadly force providing the most suitable paradigm.
36. The appellants state that "autonomy, compassion and non-abandonment
play a central role in medical ethics and that physicians are ethically
required, within the law, to act in their patients' best interests."40
37. This is the justification offered by those who
would impose upon objecting physicians a duty to do what they believe to be
wrong, including a duty to participate in killing patients. It is obvious that the
justification is based on contested presumptions that killing is medical
treatment, and that being killed may be in the patient's "best interests."
38. Less obvious is the illusion of moral neutrality created by the appeal
to autonomy. Given the absence of agreed-upon religious, moral or ethical
standards in a pluralist democracy, the Royal Society panel of experts
recommends that euthanasia and assisted suicide should be legalized "on
the basis of the value ascribed by Canadian political and constitutional
culture to the value of autonomy."41
39. They argue that, in defined circumstances,
physicians should be allowed to kill patients, but deny physicians the
freedom to refuse to facilitate killing. Their reasoning is that allowing
physicians to kill advances patient autonomy, while refusing to participate
in killing denies or at least illegitimately impedes the autonomy of others
by introducing (an inadmissible) moral judgement.
40. In reality, moral judgement precedes any decision
about whether or not to kill a patient. The experts’ moral judgment is that
it is morally permissible for physicians to participate in killing
patients in defined circumstances, and morally impermissible for
them to refuse to do so. It is absurd to suggest that refusing to facilitate
the killing of a patient involves moral judgement, but deliberately killing
a patient does not.
41. By
adopting the "value" of autonomy as their paramount ordering principle, the
experts do not avoid moral judgement. They simply make autonomy their
principal moral standard. Thus, the autonomous choice of an informed patient
makes euthanasia and assisted suicide morally permissible, even for
frivolous reasons.42
42. The justification offered for this belief is that
autonomy (as understood by the expert panel) is the de facto centre
of a social consensus around which Canadians can "work out difficult
questions of political morality in a fair and equitable manner."43
This notion may be reflected even in opposition to euthanasia and assisted
suicide when it is argued that legalization of the procedures undermines the
authentic autonomy of vulnerable people, so that "'Choice' is an illusion."44
43. It is not unreasonable to
recognize autonomy as a widely-accepted "value" that may serve to build
consensus in some circumstances. However, to insist that it must be accepted
as the sole or principal presumptive ordering principle in moral reasoning
is a dogmatic and authoritarian claim, particularly when the choice of
autonomy as an ordering principle is disputed.
44. Notwithstanding the Royal Society experts’ belief
that euthanasia and assisted suicide can be justified by respect for
autonomy, an undetermined number of health care providers will refuse to do
anything that contributes to killing patients because they act upon
different beliefs. Should they be forced to conform to the belief in
autonomy favoured by the experts and made to do what they believe to be
wrong? The need to protect preservative freedom of conscience (para.
25-35) suggests that the
answer is "no." Three further reasons support this answer.
45. The first is prudence. If it is not absolutely
certain that the moral beliefs of euthanasia and assisted suicide advocates
are correct, it is possible that the refusing health care providers are
correct, so it would be unjust to penalize them. At present, no consensus on
this is possible even on the balance of probabilities.45
Further, accommodation of objecting physicians and preventing discrimination
against them would provide an additional safeguard against abuse, while
maintaining moral diversity in medical practice will ensure continuing
debate within the medical profession that should clarify moral issues and
help to avoid error.46
46. The second is respect for human dignity, emphasized
by Madam Justice Bertha Wilson in R v. Morgentaler: "that 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."47 The "one conception of
the good life" includes a conception based on a preference for the
presumptive centrality of autonomy as an ordering principle in ethics and
law.
47. When a dispute arises because the state or other
authorities tries to compel health care providers to do what they believe to
be wrong, such as facilitating the killing of patients, the first point to
note is that the dispute involves conflicting moral claims, not a "neutral"
claim by the state or other party and a "moral" claim by a health care
provider. (para. 36-41).
48. In such cases, following Madam Justice
Wilson's advice, the coercive power of law should not be used to suppress a
plausible moral worldview in favour of one that is less plausible. If both
conflicting worldviews are equally plausible, or if the issue is in doubt,
both must be accommodates. Superadded to this is the special and onerous
obligation to accommodate the exercise of preservative freedom of conscience
(para. 29, 35).
49. All empirical evidence demonstrates that what
is more essentially characteristic of human beings and human society is
dependency and interdependency rather than autonomy and self-determination.
Moreover, working from principles of dependency and interdependency, one can
logically and coherently develop concepts of compassion, non-abandonment and
fiduciary duty, as well as the possibility of degrees of autonomy, which,
paradoxically, can develop only with the assistance of others. In contrast,
it is impossible, or at least very difficult, to logically develop or
explain any of these concepts working from the principle of autonomy.
50. If one insists that ordering principles that
inform public policy should be empirically verifiable whenever possible and
capable of logical and coherent development, it would seem that correct
legal and moral reasoning ought to acknowledge the essential primacy of
dependency as an ordering principle, not autonomy. In that case, there is no
justification for using the coercive power of law to suppress moral
worldviews informed by principles of dependency and interdependency in
favour of an establishment worldview based on autonomy. It is relevant here
to note that the primacy of human dependency and interdependency is one of
the fundamental principles informing Christian, Islamic and Jewish medical
ethics,48 to say nothing of other
religious and cultural traditions.
51. Adopting a more conservative approach, if one
holds that moral worldviews based on autonomy and those based on dependency
are at least equally plausible, respect for human dignity requires that both
be accommodated.
52. To the extent that the Court might find the
impugned legislation to be of no force and effect, it should direct
legislators and health care regulators to provide robust protection for the
freedoms and equality of those who decline to support or participate in
physician-assisted suicide or euthanasia for reasons of conscience or
religion. That protection must ensure that healthcare providers are
not directly or indirectly coerced into becoming parties to killing patients
or assisting patients kill themselves.
53. The direction should include guidance to
refine the analysis used in the limitation or balancing of fundamental
freedoms, including the need to stringently safeguard preservative freedom
of conscience and apply the criterion of comparative plausibility.
Notes:
1.
Carter v. Canada (Attorney General) 2012 BCSC 886. Supreme Court of
British Columbia, 15 June, 2012. Vancouver, British Columbia. (Accessed
15 June, 2012). Hereinafter "Carter v. Canada." The judgement
refers to the "impugned provisions" of the Criminal Code, including
the law against counselling or assisting suicide (Criminal Code, Section
241) and the law that consent is not a defence to a charge of murder
(Criminal Code, Section 14).
Carter v. Canada, para. 101.
2.
Carter v. Canada (Attorney General),
2013 BCCA 435 (Accessed 2014-10-06)
3.
Rodriguez v. British Columbia (Attorney General), 3 S.C.R. 519
(1993), 107 D.L.R. (4th) 342, 85 C.C.C. (3d) 15 (Accessed
2012-06-27)
4. In the Supreme Court of British Columbia
between Lee Carter, Hollis Johnson, Dr. William Schoichet, the British
Columbia Civil Liberties Association and Gloria Taylor, Plaintiffs, and
Attorney General of Canada, Defendant.
Amended Notice of
Civil Claim (15 August, 2011) Part 3, para. 2-3 (Hereinafter "Amended Notice
of Civil Claim")
5. In the Supreme Court of Canada (on appeal from the Court of
Appeal of British Columbia) between Lee Carter, Hollis Johnson, Dr.
William Schoichet, the British Columbia Civil Liberties Association and
Gloria Taylor, Appellants (Respondents/Cross-Appellants) and Attorney
General of Canada, Respondent (Appellant/Cross-Respondent) and Attorney
General of British Columbia, Respondent (Appellant) and Attorney General
of Ontario, Attorney General of British Columbia and Attorney General of
Quebec, Interveners.(Hereinafter "In the SCC on appeal from the BCCA")
Factum of the Appellants, para.
40-53.
6. In the SCC on appeal from the BCCA,
Factum of the
Intervener, The Canadian Medical Association, para. 1-3, 5, 16-17.
7. "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
(7th ed.) New York: Oxford University Press, 2013, p. 176
8. Section 4 of the
Act Respecting End of Life
Care states that eligible patients have a right to "end-of life-care,"
which includes euthanasia and palliative care.
9. In the BCSC,
Amended Notice of
Civil Claim, Part 1, para. 64(c), Part
3, para. 5-7, 9-11; In the SCC on appeal from the BCCA,
Factum of the Appelllants, para. 4, 123, 162-164, 182(e).
10. Outgoing President of the CMA, Dr. Louis Hugo Francescutti, commenting on
the vote at the CMA general meeting, Dr. Francesutti said, "We
delivered a very clear, concise message to Canadians that physicians will
always be there, in this most difficult time, which is end of life." Kirkey
S.
"Canadian doctors want freedom to choose whether to help terminal
patients die." canada.com, 19 August, 2014. (Accessed
2014-10-06) The new CMA President, Dr. Chris Simpson, in responding to a
suggestion that someone other than physicians should
provide euthanasia and assisted suicide, said, "I don’t think we want to be
reneging on our responsibilities to serve our patients, either." Kirkey S.
"Doctor-assisted death appropriate only after all other choices exhausted,
CMA president says." canada.com, 26 August, 2014(Accessed
2014-10-06)
11.
In the BCSC,
Amended Notice of
Civil Claim, Part 1, para. 7-10.
12. Moore, O. "Former
Canadian army officer accused of murder speaks out." Globe and
Mail, 4 September, 2012. (Accessed 2014-08-14)
13. Blackstone, W. Commentaries on the
Laws of England (12th ed.), Vol. 4. London: Strahan & Woodfall,
1795, p. 405. Citing 2 Hal. P.C. 412, 2 Hawk. P.C. 463
14.
Act Respecting End of Life
Care, section 30 (Accessed 2014-10-08)
15. "A physician charged with determining
death where initial attempts at execution failed would have to signal
that death was not achieved and indicate that the execution attempt must
be repeated. In some cases, the physician might have to specifically
indicate which drug, what amount of electricity, or what amount or type
of gas must be added or repeated in order to complete the execution."
American Medical Association,
CEJA Report A – I-92
Physician Participation in Capital
Punishment, p. 4. (Accessed 2014-10-09)
16.
Carter v. Canada, para. 211. (Accessed 15 June, 2012)
17. In the SCC on appeal from the BCCA,
Appellants' Response
to Motions to Intervene, 20 June, 2014, para. 5(c)
18. Murphy S.
"Redefining the Practice
of Medicine: Euthanasia in Quebec, Appendix 'C'."
Protection of Conscience Project (July, 2014)
19. Speaking for the Quebec Association for
the Right to Die with Dignity Association, Hélène Bolduc
told a Quebec legislative committee that the Association respected "the
freedom of the professional" and never had any intention of forcing
physicians to provide euthanasia, as "there is not a doctor who would do
it well if, in addition, it was not his inclination to do so, and it is
not to anyone's advantage to give this impression." Consultations &
hearings on Quebec Bill 52, Wednesday, 25 September 2013 - Vol. 43
no. 38:
Quebec Association for the Right to Die with Dignity (Hélène Bolduc, Dr.
Marcel Boisvert, Dr. Georges L'Espérance), T#107
20. Belgian Association of General
Practitioners, Academic Centre for General Practice at the Catholic
University of Leuven, Department of General Practice at the University
of Ghent,
Policy Statement on End of Life Decisions and Euthanasia (Standpunt over
medische beslissingen rond het levenseinde en euthanasie) 4
December, 2003, Proposition 6;
Royal Dutch Medical Society (KNMG) Position Paper,
The Role of the Physician in the Voluntary Termination of Life
(23 June, 2011), p. 40.
21. For example, Rodgers S. Downie J.
"Abortion: ensuring access." CMAJ July 4, 2006 vol. 175 no.
1 (Accessed 2014-02-14)
22. Murphy S.
"Redefining the
Practice of Medicine: Euthanasia in Quebec, Part 6- Participation in
Killing." Protection of Conscience Project (July, 2014)
23. Murphy S.
"Redefining the Practice of Medicine: Euthanasia in Quebec, Part 5- An
Obligation to Kill (Discrimination for refusing to kill)"
Protection of Conscience Project (July, 2014)
24. Confidential Protection of Conscience Project correspondence. The victim
decided against legal recourse because he/she was concerned that it
would prevent him/her from getting another job. He/she is now employed
elsewhere, but remains concerned that his/her employment or professional
opportunities may be adversely affected if particulars are made public.
25.
In the SCC on appeal from the BCCA,
Factum of the Appellants (13 May, 2014) para. 4, 123, 162-164
(Accessed 2014-08-18)
26.
In the BCSC,
Amended Notice of
Civil Claim, Part 1, para. 55, 64(c); Part 3, para. 9-11, 18
27.
Carter v. Canada, para. 239-240. Others have made the
same claim: see Angell M., Lowenstein E.
"Letter re:
Redefining Physicians' Role in Assisted Dying." N Engl J Med
2013; 368:485-486 January 31, 2013 DOI: 10.1056/NEJMc1209798 (Accessed
2014-08-16)
28.
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. 62, 69, 101
(Accessed 2014-02-23)
29.
Carter v. Canada, para. 120-130
30.
Carter v. Canada, para. 124
31. Downie J, McLeod C, Shaw J.
"Moving Forward with a Clear
Conscience: A Model Conscientious Objection Policy for Canadian Colleges
of Physicians and Surgeons." Health Law Review, 21:3, 2013,
para. 5.3
32.
Downie J, McLeod C, Shaw J.
"Moving Forward with a Clear
Conscience: A Model Conscientious Objection Policy for Canadian Colleges
of Physicians and Surgeons." Health Law Review, 21:3, 2013, para. 5.4
33.
Submission of the Ontario Human Rights Commission to the College of
Physicians and Surgeons of Ontario Regarding the draft policy,
"Physicians and the Ontario Human Rights Code." 15 August,
2008. (Accessed
2014-03-08)
34.
Trinity Western University v. College of Teachers, [2001] 1
S.C.R. 772, 2001 SCC 31
(Accessed 2014-07-29) Quoted in
Submission of the Ontario Human Rights Commission to the College of
Physicians and Surgeons of Ontario Regarding the draft policy,
"Physicians and the Ontario Human Rights Code." 15
August, 2008. (Accessed
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35. This section draws from an
extended discussion of the subject in Murphy S, Geunis S.J.
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(Accessed 2014-02-19)
37. In the SCC on appeal from the BCCA,
Factum of the Appellants, para. 156,
note 312. (Accessed 2014-08-18)
38. Murphy S.
"Redefining the
Practice of Medicine- Euthanasia in Quebec, Part 9: Codes of Ethics and
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39. Himmelstein DU, Woolhandler S.
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40. In the SCC on appeal from the BCCA,
Factum of the Appellants, para.
9. (Accessed 2014-08-18)
41. 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. 40
(Accessed 2014-02-23)
42. The assertion occurs within the context
of a discussion of assisted suicide, but the justification they offer
would hold for euthanasia as well. 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. 51
(Accessed 2014-02-23)
43.
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. 42
(Accessed 2014-02-23)
44.
"Choice is an Illusion: A human rights organization opposing assisted
suicide and euthanasia, sometimes termed 'death with dignity' or 'aid in
dying.'" (Accessed 2014-08-18)
45. Fernandez-Lynch, Holly, Conflicts of
Conscience in Health Care: An Institutional Compromise. Cambridge,
Mass.: The MIT Press, 2008, p. 84-85, 135. (Hereinafter "Conflicts")
46.
Conflicts, p. 85.
47.
R. v. Morgentaler (1988) 1 S.C.R. 30, p. 166
(Accessed 2014-08-19)
48. Pontifical Council for Justice and Peace,
Compendium of the Social Doctrine of the Church. Washington: U.S.
Conference of Catholic Bishops, 2007, para. 192-196; Sachedina A.
Islamic Biomedical Ethics: Principles and Application. Oxford:
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