Submission to the Special Joint Committee on Physician Assisted
Parliament of Canada
31 January, 2016
I.1 The Protection of Conscience Project does not take a position on the
acceptability of euthanasia or physician assisted suicide or the merits of
legalization of the procedures. The Project's concern is to ensure that
health care workers who object to providing or participating in homicide and
suicide for reasons of conscience or religion are not compelled to do so or
punished or disadvantaged for refusal.
II. Provinicial-Territorial recommendations
II.1 The Provincial-Territorial Expert Advisory Group on Physician
Assisted Dying made 43 recommendations concerning the implementation of the
Supreme Court of Canada ruling in Carter v. Canada (Attorney General).1 The
following are of particular concern:
- that objecting facilities should
be forced to arrange for homicide or assisted suicide elsewhere by
initiating patient/resident transfers;
- that objecting physicians or
health care workers should be forced to actively enable homicide or suicide
- providing referrals, or
- arranging direct transfers, or
- enlisting or arranging the enlistment of patients in a euthanasia/assisted
suicide delivery system analogous to an organ transplant system.
II.2 These recommendations are inconsistent with genuine accommodation of freedom
of conscience and religion, inasmuch as many conscientious objectors
reasonably consider them to involve unacceptable complicity in homicide and
suicide. The reasonableness of their position can be verified by considering
it within the context of law and public policy.
III. Complicity in public policy and law
III.1 With respect to the legal context, but
for the Carter decision, physicians who acted in accordance with any of
these recommendations would be exposed to criminal prosecution as a party to the
offence of first degree murder or assisted suicide, or conspiracy to commit
first degree murder or assisted suicide. In addition, they would be
civilly liable for damages arising from the homicides or suicides to which
they were parties.
III.2 The public policy context is provided by the case
of Maher Arar. In 2002, Arar, a Canadian citizen, was detained in New
York, interrogated and "rendered" to Syria by U.S.
authorities. In Syria he was imprisoned for almost a year, "interrogated,
tortured and held in degrading and inhumane conditions."2 A subsequent
"comprehensive and thorough" investigation "did not turn up any evidence
that he had committed any criminal offence" and disclosed "no evidence" that
he was a threat to Canadian security."3 A commission of inquiry was appointed
to investigate "the actions of Canadian officials" in the case.4
III.3 What concerned the Canadian public and the government was whether or not
Canada was complicit in the torture of Maher Arar. That concern surfaces
repeatedly in the report of the commission of inquiry: in briefing notes to
the Commissioner of the RCMP,5 in the testimony of the Canadian Ambassador to
Syria,6 in references to the possibility of RCMP complicity in his
deportation,7 about the perception of complicity if CSIS agents met Mr. Arar
in Syria,8 in the suggestion that evidence of complicity could show
pattern of misconduct,"9 and in the conclusions and recommendations of the
III.4 The issue of complicity arose again in 2007 when a
report in Toronto's Globe and Mail alleged that prisoners taken in
Afghanistan by Canadian troops and turned over to Afghan authorities were
being mistreated and tortured.11 "Canada is hardly in a position to claim it
did not know what was going on," said the Globe. "At best, it tried not to
know; at worst, it knew and said nothing."12
On this view, one can be complicit in wrongdoing not only by acting, but by
failing to act, and even by silence.
III.5 The Arar Inquiry and the concerns raised
by the Globe and Mail story about Afghan detainees make sense only on the
premise that one can be morally responsible for acts actually committed by
another person: precisely the position taken by physicians who would refuse
to comply with demands that they help find a colleague who will kill
patients or help a patients kill themselves.
III.6 The Carter decision changed the
law on murder and assisted suicide by making exemptions in defined
circumstances, but it did not change the reasoning that underpins the law on
parties to offences - the same reasoning that triggered the commission of
inquiry investigating the treatment of Maher Arar, the same reasoning that
sparked the Globe and Mail editorial about the treatment of Afghan
detainees, and the same reasoning used by physicians and health care
providers who would refuse to facilitate euthanasia or assisted suicide by
III.7 The reasoning that underpins the law on
parties to criminal offences and public policy on
complicity in torture cannot be dismissed as ethically or legally irrelevant
to the exercise and protection of fundamental freedoms of conscience and
IV. Coerced complicity in homicide
IV.1 The position of the Provincial-Territorial Expert Advisory Group and
some influential or powerful individuals or groups is that a learned or
privileged class, a profession or state institutions can legitimately compel
people to be parties to homicide or suicide - and punish them if they
IV.2 Nothing of the kind is stated or implied in
Carter. This is
not a reasonable limitation of fundamental freedoms, but a reprehensible
attack on them and a serious violation of human dignity. From an ethical
perspective, it is incoherent, because it posits the existence of a moral or
ethical duty to do what one believes to be wrong. From a legal and civil
liberties perspective, it is profoundly dangerous. If the state can demand
that citizens must be parties to killing other people, and threaten to
punish them or discriminate against them if they refuse, what can it not
demand? Yet the Group appears to experience resistance to coerced
participation in homicide and suicide as a "uniquely Canadian" mountain to
IV.3 Other countries have demonstrated that it is possible to
provide euthanasia and physician assisted suicide without suppressing
fundamental freedoms. None of them require "effective referral,"
transfer" or otherwise conscript objecting physicians into
euthanasia/assisted suicide service (Appendix "A"). It
appears that they recognize a point made by Dr. Monica Branigan when she
appeared before the Committee: that one "cannot build a sustainable system
on moral distress."14
V. Federal and provincial
V.1 Provincial governments have primary jurisdiction over human rights
law, subject to the Canadian Charter of Rights and Freedoms. By virtue of
the subject matter in this particular case (homicide and suicide), the
federal government has jurisdiction in criminal law.
V.2 Criminal law is
not used to enforce or defend fundamental rights and freedoms per se. For
that, Canada relies upon human rights statutes. But Canada does use the
criminal law to prevent and to punish particularly egregious violations of
fundamental freedoms that also present a serious threat to society: unlawful
electronic surveillance, unlawful confinement and torture, for example.
V.3 Coercion, intimidation or other forms of pressure intended to force
citizens to become parties to homicide or suicide is both an egregious
violation of fundamental freedoms and a serious threat to society that
justifies the use of criminal law.
V.4 For this reason, whatever might be
decided about laws regulating euthanasia and assisted suicide, the Project
proposes that the federal government make it a matter of law and national
public policy that no one can be compelled to become a party to homicide or
suicide, or punished or disadvantaged for refusing to do so, even if the
homicide or suicide is not a criminal offence.
offers an amendment to the Criminal Code designed to achieve that
1. Provincial-Territorial Expert Advisory Group on
Final Report (30 November, 2015).
For commentary on the Report, see Murphy S.
"A uniquely Canadian approach" to freedom of conscience: Experts recommend
coercion to ensure delivery of euthanasia and assisted suicide."
Protection of Conscience Project, 22 January, 2016.
2. Commission of Inquiry into the Actions of
Canadian Officials in Relation to Maher Arar,
Report of the Events Relating
to Maher Arar: Analysis and Recommendations. (hereinafter, "Arar Inquiry:
Analysis and Recommendations") p. 9
Arar Inquiry: Analysis and Recommendations, p.
Deputy Prime Minister Issues Terms of Reference
for the Public Inquiry into the Maher Arar Affair. (Accessed 2016-01-27)
5. Commission of Inquiry into the Actions of Canadian
Officials in Relation to Maher Arar,
Report of the Events Relating to Maher
Arar: Factual Background, (hereinafter "Arar Inquiry") Vol. 1, p. 64.
Arar Inquiry: Vol. I, p. 271.
Arar Inquiry: Vol. I, p. 299.
Arar Inquiry: Vol. I, p. 309-310.
Arar Inquiry: Vol. II, p. 770.
Arar Inquiry: Analysis and Recommendations,
p. 29, 35, 199, 271, 345-346.
11. Smith, Graeme,
"From Canadian custody into cruel hands." Globe and Mail,
23 April, 2007 (Accessed 2016-01-27).
"The truth Canada did not wish to see." Globe and Mail, 2
April, 2007. (Accessed 2016-01-27).
13. Meeting No. 5, PDAM Special Joint Committee on
Physician Assisted Dying, 26 January, 2016.
Maureen Taylor, speaking for the Provincial-Territorial Expert Advisory Group on
Physician Assisted Dying - 19:07:53 to 19:08:11. (Accessed 2016-01-28)