Submission to the Standing Committee on Justice and Human Rights
Parliament of Canada
Amendment to Bill C-7: An Act to amend the Criminal Code (medical assistance in dying)
1 November, 2020
I.1 The Protection of Conscience Project does not take a position on the acceptability of euthanasia or physician assisted suicide. The Project supports legislation that ensures 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.
I.2. Since Canadian provincial governments have primary jurisdiction in human rights law, it does not appear to be constitutionally possible to include a protection of conscience provision in Bill C-7. That, however, is not the end of the matter.
I.3 Euthanasia and assisted suicide (MaiD) involve distinct federal and constitutional jurisdictions that require different responses from national and provincial governments. The exemptions in criminal law that permit euthanasia and assisted suicide are exclusively within federal jurisdiction. However, provinces have the authority to regulate the practices within the parameters set by the criminal law.
I.4 The Parliament of Canada can use its criminal law power to prohibit procedures that might be asked of physicians or other health care workers. For example, it has forbidden female genital mutilation, and the government plans to prohibit some forms of "conversion therapy." Subject to constitutional challenges, criminal legislation would override contrary provincial law.
I.5 In putting forward Bill C-7 the federal government is exercising its absolute constitutional jurisdiction in the criminal law respecting homicide and suicide. Within that context, Bill C-7 can be amended in a way that would have the effect of protecting freedom of conscience without intruding upon provincial jurisdiction. Just as it has made female genital mutilation a crime, the federal government can make it a crime to force people to become parties to homicide and suicide.
I.6 This submission includes an amendment to Bill C-7 that would add a section to the general provisions of the Criminal Code concerning homicide and suicide (Appendix “A”). It uses the language of the criminal law: inflicting death, homicide, suicide and the well-established and well-understood criminal concept of "parties" to acts. The proposed amendment would establish that, as a matter of law and national public policy, no one can be compelled to become a party to homicide or suicide, or punished or disadvantaged for refusing to do so.
I.7 The amendment would not prevent the provision of euthanasia or assisted suicide by willing practitioners, nor rational arguments aimed at persuading practitioners to participate, nor the offer of incentives to encourage participation. It is an addition that does not otherwise change the text of Bill C-7. Nor does it touch the eligibility criteria proposed by the Supreme Court and subsequent cases.
I.8 However, the amendment would prevent state institutions or anyone else from attempting to force unwilling citizens to be parties to killing someone or aiding in suicide. It would prevent those in positions of power and influence from harassing, punishing or disadvantaging anyone who refuses to be a party to inflicting death on others.
I.9 This is an eminently reasonable and fully defensible exercise of Parliament's jurisdiction in criminal law. The need for the amendment is demonstrated by policies in Ontario, Nova Scotia, New Brunswick and Manitoba that compel health care workers to become parties to inflicting death upon patients, and by the fact that Bill C-7 will increase demands that they participate in euthanasia and assisted suicide in increasingly controversial cases.
I.10 The proposed amendment does not infringe the constitutional jurisdiction of provinces in the administration and enforcement of human rights law. Nor would it interfere with the full and legitimate exercise of provincial jurisdiction in health care or the regulation of medical professionals. Rather, it would re-establish and preserve a foundational principle of democratic civility: that no one and no state institution should be allowed to compel unwilling citizens be parties to killing other people.
I.11 Some people are offended or made uncomfortable by the use of the terms "killing," "homicide" and "suicide" in relation to euthanasia and assisted suicide. However, killing, homicide and suicide are the subject of the provisions of the Criminal Code concerning medical assistance in dying. Lawyers from the Department of Justice and the Criminal Lawyers' Association made that abundantly clear to the parliamentary committees considering a response to the Carter decision. Mr. Justice Moldaver of the Supreme Court of Canada, one of the judges who wrote the Carter decision, was equally candid when discussing legislative safeguards:
When Parliament authorizes someone to kill somebody, they might want judicial approval first. They might want to put in measures that ensure so far as possible that we are not killing people who really ought not to be killed.1
I.12 The proposed amendment to Bill C-7 would ensure, so far as possible, that no one in Canada is forced to kill or to be parties to killing other people, no matter what others might want.
1. Supreme Court of Canada, 35591, Lee Carter, et al. v. Attorney General of Canada, et al (British Columbia) (Civil) (By Leave). Webcast of the Hearing on 2016-01-16 [Internet]. Ottawa: Supreme Court of Canada; 2018 Jan 22. 1:15:36 to 1:16:03.