Submission to the Special Joint Committee on Physician Assisted Dying

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I.    Introduction

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 by
  • 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 "a pattern of misconduct,"9 and in the conclusions and recommendations of the report itself.10

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 referral.

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 religion.

IV.    Coerced complicity in homicide and suicide

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 refuse.

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 be climbed.13

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," physician-initiated "direct 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 jurisdiction

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. Appendix "B" offers an amendment to the Criminal Code designed to achieve that end.

Notes

1.  Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying, 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 (Accessed 2016-01-27).

3.  Arar Inquiry: Analysis and Recommendations, p. 35-36 (Accessed 2016-01-27).

4.  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. (Accessed 2016-01-27).

6.  Arar Inquiry: Vol. I, p. 271.

7.  Arar Inquiry: Vol. I, p. 299.

8.  Arar Inquiry: Vol. I, p. 309-310.

9.  Arar Inquiry: Vol. II, p. 770.

10.  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).

12.  Editorial, "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)

14.  Meeting No. 6, PDAM Special Joint Committee on Physician Asssisted Dying, 27 January, 2016. Dr. Monica Branigan, speaking for the Canadian Society of Palliative Care Physicians - 17:29:02 to 17:29:30 (Accessed 2016-01-28)

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