Re: Joint intervention in Carter v. Canada
Selections from oral submissions
Supreme Court of Canada,
15 October, 2014
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 an
Annotated selections from the oral submissions relevant to freedom of
conscience are found below. In each case, readers can access
the Supreme Court webcast through the linked image. Time stamps are cited to allow the
relevant section of the webcast to be located. On the Supreme
Court website, use "full
screen" view when dragging the slider button to the desired time stamp.
|Mouseover red text for
Joseph Arvay, Q. C. (Counsel for the Appellants)
Now let me finally cut to the chase, to the heart of this
The most vociferous opposition to our challenge comes from some church
groups, and some disabled organizations.
To the church groups we
simply say that we respect your religious views, but they cannot, in this
secular society, trump our clients' constitutional rights.
Jean-Yves Bernard (Counsel for the Attorney General of Quebec)
Mr. Justice LeBel:
Now, if you define this act as treatment, then
the conscientious objection of, uh, doctors or others involved in the health
care system, is that taken into account?
M. Jean-Yves Bernard: Yes. I see that my time is about to
expire, but I would like to look at a couple of provisions of our
legislation. The medical professional cannot be forced to give this
care if they have conscientious objection. At that point they have to
refer to other medical authorities who will take the necessary steps to
ensure that someone else who is willing to take on the task be in a position
to provide end of life care. But an individual doctor is never
compelled to act against their conscience.
. . . You will find our legislation at Tab 35 of our book of
authorities. And I would invite you to, to read
Section 1 of the
is the intent of the
Act. And then you have the definition section of end
of life care, palliative care, and, physician assisted dying. And in
Section 29 and
26 you will see what needs to be done before any assistance
can be provided. . . . There is also
Harry Underwood (Counsel for the Canadian Medical Association)
Justices, it's not my brief on behalf of the
Canadian Medical Association to speak for or against legalization of
physician assisted death. I will instead try to show you why physician
participation, if legalized, in the practice if legalized, should be
considered a matter of conscience and some of the implications that
would arise for its adoption for the real world practice of medicine in
Canada which is generally reflected in the evidence.
For doctors, whether the practice conforms to the law does not exhaust
the question of whether they can support it, and it's important that the
public understand that. Doctors do not wish to be regarded as mere
medical technicians. They wish to discharge their professional
responsibilities according to ethical principles that are generally accepted
and that they can accept as individuals. For many doctors, the
question of whether they, as individuals, should in physician
assisted death is one that goes to the root of their professional
responsibilities. The question's been much considered within the
profession, including through initiatives taken by the CMA described in our
factum. The CMA has a long-standing policy on euthanasia and assisted
suicide. It was referred to in
Rodriguez. Ethical considerations
have historically been considered as barring practices such as physician
And that's because the policy reflects, as the first principle of
medicine, the doctor's duty to secure patient well-being. It refers to
patient autonomy as another relevant principle, and that, of course,
requires respect for patient values and treatment goals. The duty to
preserve life has long been seen as the cornerstone of the first principle.
And in the case of incurable illness, the recognized duty has been seen as
providing physical comfort and support. And the policy opposed
physician assisted dying for these reasons.
But the concept of patient well-being is capable of an interpretation
which encompasses the patient's right to choose death, where the alternative
is certain suffering, a choice which is also supported by the concept of
patient autonomy. Thus, going back to first principles, the two
approaches are each possible.
The CMA's task as policy maker is to express values that are subscribed
to by the medical profession and apply them to the practical questions that
doctors face. With the profession now divided between the two positions,
each defensible on the basis of established medical ethical considerations
and compassion for the patient, the CMA has decided to accept that physician
assisted death, if it should become legal, may properly be undertaken by
physicians who can square their participation with their own consciences,
without overriding the consciences of those who object to it. And this is reflected in a
resolution taken only this
last August by the membership which we described in the factum. And
the CMA policy will be amended to reflect this more fully.
Consistent with the matter as being a matter of conscience, the law
should offer protection to those physicians who choose to participate in
physician assisted death if it is legalized, and those who do not. As well, the choice
of those who do not wish to
the practice must be respected. Moreover, if doctors are to fulfil the role
that the trial judge has designated for them, they must have the option of
refusing to provide it where they consider it inappropriate to do so in
light of the specified criteria and the patient's best interests
Next, the CMA submits that the critical risks associated with
physician assisted death are those grouped under vulnerability,
comprising not just undue influence, bu the unaddressed fears and
misconceptions which may motivate a patient. It's imperative to ensure
that the choice of physician assisted death is free and fully informed.
And it's clear from the evidence accepted by the trial judge that the
risks associated with the decision are real. Repeatedly she found that
the risks can be offset by rigorous assessments undertaken by doctors to
rule them out.
But there are important real world, real world constraints that
doctors and patients face, which were so much a matter of concern for
this court in Chaoulli. It would be wrong to close our eyes to them.
The trial judge found that doctors are already experienced in the
assessment of patients' competence and voluntariness. But the
considerations affecting patients expressing a wish to die are quite
outside the norm. Many such patients who are old or chronically infirm
both worry about being a burden to others. Many such patients are
afflicted with hopelessness, with depression, which may affect the power
to make a rational decision, and which may be, for a doctor who doesn't
know the patient, difficult to diagnose. Many such patients fear dying
in hospital, in pain. And all these can contribute to patient
The problem with ensuring voluntariness requires that patients'
values and goals with respect to end of life treatment are subject to a
full discussion between the patient and his or her GP, grounded in
trust. There are some things about a patient that a doctor can learn
only over time. Multiple interviews and gathering collateral
information, as the trial judge commends, can hardly substitute for a
long term relationship with the patient, and the looming concern is that
discussions will occur and decisions will be taken in the emergency room
or the ICU when patients are in crisis.
It's here we come face to face with real, real world problems that
exist in Canada. For example: not everyone has a family doctor. The
majority of Canadians do not have a long term relationship with one.
Second: for those who do, decisions with respect to end of life
wishes are not routinely held between doctor and patient in advance of
need. Patient doctor discussions on end of life care have to become part
of the routine of family practice, as the CMA has advocated. They need
to be compensated, for example, under provincial fee schedules, as
American health insurers are beginning to do.
Third: it's still the case that not all general practitioners have a
good understanding of what palliative care can provide. This requires
adequate education and training in palliative care for GPs. For many
years this wasn't very much available, although concerted efforts are
now being made within the profession to correct this.
Fourth: patients's goals may change with treatment and with their
adaptation to their disabilities, but fewer and fewer general
practitioners follow their patients when they're admitted to hospital.
Ideally, one day in Canada, general practitioners will act as primary
palliative care providers in the community, in hospitals, in hospices,
in patients' homes, but no one would say that we are there yet.
Fifth: specialist palliative care should be universally available on
referral, as the CMA advocates. Palliative care consultations can
alleviate fears, and the treatment itself can brighten patients'
outlooks, as often happens, such that patients no longer deserve to, no
longer desire to die. But palliative care services are a patchwork
across the country, and we have yet to develop a national palliative
care strategy to remedy this, although it's been called for for years by
the CMA, among others.
The trial judge noted that, in Oregon, most of the affected patients
are receiving hospice care, where it's likely that treatments, treatment
options are fully explained, and adequate palliative care is available
to the patient. In any event, Oregon has some of the highest rates of
end of life communication in the U.S.
In the Netherlands and in Belgium there's a much greater likelihood
that a patient will have a long term relationship with a GP. There are
distinct differences that apply between those compact, homogenous places
and our diverse multi-jurisdictional country. Whichever way this case is
decided, this court can, by showing its concern, highlight the risk of
In the event that the law is to change, Canada can't simply adopt the
Oregon model without putting proper institutional supports in place.
They have to be considered alongside any new legislative regime. To
ensure that this occurs, interested parties must have the time to
organize themselves and the opportunity to present their case to
parliament and to the public. There's no doubt that doctors will be
Robert W. Staley (Counsel for the Catholic Civil Rights League, Faith and
Freedom Alliance, and Protection of Conscience Project)
. . . We represent the
Catholic Civil Rights
Freedom Alliance and the
Protection of Conscience Project.
And just from the name of our clients, we represent a group that is diverse.
The first of the two interveners that are identified are
what Mr. Arvay
might call "church groups." The second one is the Protection of
Conscience Project, is an intervener that does not take a position on the
merits of the appeal. . .
. . . Our submissions today go to the issue of remedy. Because our
clients don't take a position on the appeal, the submissions we make, and
that's probably why I'm last, go to what happens if you decide to allow the
appeal. And our clients, though they are diverse in their views on the
merits of the appeal, their position and their submission to you is that in
the event that you declare that Section 241 is invalid, you should at the
same time provide direction to the legislature, in addition to providing the
legislature time to remedy the problem, to give direction to the legislature
that is sufficient to protect the freedom of conscience of healthcare
providers who object to directly or indirectly participating in physician
And, and just before I get into the three points that I want to make that
are set out in our outline, I listened with interest to the
comments made by
counsel for the Attorney General for Quebec, who said that the Quebec
statute, which at some point may come before you, is intended to do
precisely that, and I would say to you it does exactly, it does nothing of
the sort. And it's precisely the sort of thinking that, in our
submission, ought to be protected against.
The three points that I want to develop briefly, I'm going to take you
briefly just to a couple of items in my condensed book are the following.
The first one is that freedom of conscience protects sincerely held moral
The second point I want to make is that healthcare providers have no
legal duty to kill, and - this is more to the point of the submissions
I want to make - or to assist in killing patients.
And the third one is that direction to the legislatures is necessary to
protect freedom of conscience, especially when we hear the counsel for the
Quebec Attorney General say that the province has done exactly that when I
say they haven't.
So I want to start now with the first of the three submissions I'm making
briefly. And that deals with the freedom of conscience protecting
sincerely held moral beliefs. This court has only addressed
section, the freedom of conscience in Section 2(a) in one case, and that's
in Justice Morgentaler's reasons, in, uh, Justice Wilson's reasons in
I've given you the relevant abstract at my compendium at Tab 3, and at
178, she notes there, that freedom of conscience is personal morality which is
not founded in religion and conscientious beliefs which are not religiously
motivated. And it's important to note that while religion obviously
has views on killing, it's possible to have moral views about killing that
are divorced from religion.
And in terms of how those are to be protected, we say that the test for
triggering a freedom of conscience claim should be the same test as the test
for triggering a freedom of religion claim, which is as set out in the
- Does the claimant have a moral practice or belief that
calls for a particular line of conduct?
- And, secondly, is he or
she sincere in his or her belief?
And there is no reason, in my
submission, to distinguish between freedom of conscience and freedom of
religion in respect of the protection that Section 2(a) affords.
The next point I want to make is, deals with there being no legal duty to
kill or assist in killing patients. And I have extracted, in Tab 6 of
the compendium, an extract from the
Rodriguez trial decision, where the court
there notes in the, in paragraph 15, that dealing with the
physician assisted suicide there could be no duty at law on a physician
to assist the petitioner in achieving her goal, which, of course, in that
case, was death.
And in this case, The issue that we're concerned with, that my
client is concerned with, is what is, what happens if one is asked to assist
Click to enlarge
that I have extracted at Tab 9, and
you will see from the
that what the Royal Society calls for, that's
sideboarded the portion, it begins three lines down, is that where a physician
decides that he or she is not going to help kill a patient, he or she has a
duty to refer the patient to somebody who will kill them.
"And our submission to you . . . is that no
health care professional should be at legal jeopardy, because, including
professional jeopardy, because he or she refuses to kill patients or
take steps to indirectly assist patients who wish to kill themselves."
And, you know, it's not
like we're talking here about someone who's got a hangnail, you're talking
about something that,
for many people, is a very deeply, deeply held view, whether it's religiously based
or not. And the view here from the Royal Society is that where this
right, where this right is recognized, that physicians have to cooperate in allowing for physician
assisted suicide to happen, even if they are not the ones who are prepared
to provide it. And our submission to you on behalf of our intervener
clients, is that no health care professional should be at legal jeopardy, because,
including professional jeopardy, because he or she refuses to kill patients
or take steps to indirectly assist patients who wish to kill themselves.
I now go to my third point, which is that the direction is necessary.
And as we have heard, the court has heard today in submissions that you've
already received, Quebec is the first province to adopt legislation
expressly permitting physician assisted death. And I have extracted, at
Tab 15, a relevant section of the statute, it's that I want to
refer you to, and this is the one that counsel for the Attorney General of
Quebec said protected physicians rights.
Click to enlarge
If you take a look at it
provides that the
Act does not limit the right of health care professionals to refuse -
pause there - in accordance with their code of ethics - to provide
or take part in providing end of life care for reasons of conscience.
And so the question, of course, is, well, what does the code of ethics say?
And what will the physicians' societies say to people who have a moral view
on this issue, that opposes not only the act of killing, but also the act of
assisting in killing, even including by making the referral?
Click to enlarge
turn over the next tab and you find that the
code of ethics for physicians
in Quebec, which we have extracted, provides in Section 24 that the
must, where his personal convictions prevent him from prescribing or
providing professional services, acquaint the patient with the convictions
and advise him of the possible consequences, and then goes on to say the
physician must then offer to help the patient find another physician.
for the physician who opposes physician assisted suicide has that, opposes
on the basis of conscience, believes that it is morally wrong according to the person's
conscience to participate in physician assisted suicide. Remember,
this is an act that, until a few years ago, was a criminal act in Canada.
A criminal act.
And it's our respectful submission that if this view is adopted in
Canadian law, health care providers may be compelled to act, directly or
indirectly, as is set out in Quebec, against their constitutionally
protected, sincerely held moral beliefs, and that those moral beliefs, in my
constitutional protection, and that this court, if it decides to allow the
appeal and directs the legislature that the legislation should be fixed, in
my submission you should, at the same time, provide that any fix to
legislation take into account the constitutional rights of those who object,
as a matter of conscience, to killing, directly or indirectly, other people.