Abstract
Freedom of conscience has received little attention as a distinct protection in Canadian case law to date. Where it has been judicially considered, it has largely been conflated with freedom of religion. While these two freedoms share similarities, there are important distinctions between them. This article examines some of these distinctions, and how the need for greater attention to conscience has come into sharp focus in the debate surrounding physician participation in medical assistance in dying (MAID). Building on a growing body of scholarship, this article makes the case for a more purposive and generous interpretation of freedom of conscience as an independent right with independent content, as required by established principles of Charter interpretation. First, the authors summarize how claims of conscience in the context of MAID have thus far been assessed primarily through the lens of freedom of religion. Second, they explain how conflating freedom of religion and conscience results in the former subsuming the latter, in problematic ways. Third, they propose some ideas on how freedom of conscience can be more robustly understood, calling for (1) a clearer articulation of the purpose for and necessity of protecting conscience; and (2) an analytical framework that recognizes the complexity of conscientious convictions, and the severe social, public, and individual harms of violating conscience.
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Notes
- 1.
R v Big M Drug Mart, [1985] 1 SCR 295 at para 122.
- 2.
Ibid.
- 3.
Ibid.
- 4.
Ibid.
- 5.
See discussion in Brian Bird, Dwight Newman, and Derek Ross, “The Charter’s forgotten fundamental freedoms”, Policy Options (16 June 2020), online: https://policyoptions.irpp.org/magazines/june-2020/the-charters-forgotten-fundamental-freedoms/.
- 6.
See Brian Bird, “The Call in Carter to Interpret Freedom of Conscience” (2018) 85 SCLR (2d) 107-141; Mary Ann Waldron, “Conscientious Objections to Medical Aid in Dying: Considering How to Manage Claims of Conscience in a Pluralistic Society” (2018) 85 SCLR (2d); Barry W. Bussey, “Blazing the Path: Freedom of Conscience as the Prototypical Right” (2020) 98 SCLR (2d); Brian Bird, “The Reasons for Freedom of Conscience” (2020) 98 SCLR (2d); and Howard Kislowicz, Richard Haigh, Adrienne Ng, “Calculations of Conscience: The Costs and Benefits of Religious and Conscientious Freedom” (2011) 48:3 Alta L Rev 679.
- 7.
The Supreme Court made this point with respect to s. 2(d) freedom of association in Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 at para 49.
- 8.
R v Morgentaler [1988] 1 SCR 30 at 179.
- 9.
R v Big M Drug Mart, [1985] 1 SCR 295 at paras 117–118.
- 10.
R v Morgentaler [1988] 1 SCR 30 at 96.
- 11.
Carter v Canada, 2015 SCC 5 at para 132.
- 12.
Ibid.
- 13.
Ibid.
- 14.
The CPSO imported the “effective referral” requirement previously developed as part of its Professional Obligations and Human Rights Policy into its MAID Policy. See Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393 at para 78.
- 15.
Ibid. at para 24.
- 16.
While this article was at review stage, the CPSO issued a new draft policy, “Human Rights in the Provision of Health Service,” and a companion “Advice to the Profession” document for public consultation. The Advice document provides an additional example to satisfy effective referral requirements that is arguably less onerous, in which the conscientiously-objecting physician may provide a patient with contact information for “a non-objecting, available, and accessible physician, other health-care professional, or agency”. While this may allow some flexibility in specific circumstances, the document also enhances follow-up obligations requiring the physician to confirm that the patient was connected with a MAID assessor/provider and to “take a more active step” if the patient was not. Ultimately, it seems that the primary concern for conscientious objectors still remains, which is taking “positive action” in facilitating euthanasia or assisted suicide. See http://policyconsult.cpso.on.ca/?page_id=14240 for the draft documents.
- 17.
Indeed, while the context raises other complexities, the CPSO itself recognizes that, in the case of female genital cutting/mutilation, referrals have medical implications and are prohibited; see College of Physicians and Surgeons of Ontario, Statements & Positions, “Female Genital Cutting (Mutilation)”, online: https://www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Female-Genital-Cutting-Mutilation: “Physicians will be subject to disciplinary measures if they perform, assist in or refer patients for FGC/M procedures” (emphasis added). For further discussion on the moral implications of referral, see Dr. Ewan Goligher and Simon Czajkowski’s chapter in the present volume.
- 18.
World Medical Association, “WMA Declaration on Euthanasian and Physician-Assisted Suicide: Adopted by the 70th WMA General Assembly, October 2019” (23 November 2021), online: https://www.wma.net/policies-post/declaration-on-euthanasia-and-physician-assisted-suicide/. See also “WMA Declaration of Venice on End of Life Medical Care” (revised by the 73rd General Assembly, October 2022), online: https://www.wma.net/policies-post/wma-declaration-of-venice/.
- 19.
Instead, “The physician must immediately and respectfully inform the patient of this objection and of the patient’s right to consult another qualified physician and provide sufficient information to enable the patient to initiate such a consultation in a timely manner.” See WMA International Code of Ethics (revised by the 73rd General Assembly, October 2022), online: https://www.wma.net/policies-post/wma-international-code-of-medical-ethics/
- 20.
Canadian Medical Association, “CMA Policy: Medical Assistance in Dying” (2017), online: https://policybase.cma.ca/viewer?file=%2Fmedia%2FPolicyPDF%2FPD17-03.pdf.
- 21.
Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393 at para 79.
- 22.
Ibid. at paras 107, 112–113, 160; Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (Div Ct) at para 177.
- 23.
Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (Div Ct) at para 177; Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393 at para 158.
- 24.
Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (Div Ct) at para 174.
- 25.
As Chief Justice McLachlin observed (in a passage repeated in Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (Div Ct)): “The test must not be applied in a manner that amounts to identifying the Canadian province that has adopted the ‘preferable’ approach to a social issue and requiring that all other provinces follow suit”; see Quebec (Attorney General) v A, 2013 SCC 5 at para 440. See also the discussion in Christian Legal Fellowship, “Submissions of Christian Legal Fellowship re: The College of Physicians and Surgeons of Ontario’s (CPSO) policies concerning Medical Assistance in Dying and Professional Obligations and Human Rights” (14 May 2021), online: https://static1.squarespace.com/static/57503f9022482e2aa29ab3af/t/609ef13c76d9926869ed4fec/1621029180353/CLF+submission+to+CPSO+re+MAID+and+POHR+policies+-+May+14%2C+2021.pdf.
- 26.
Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393 at para 85.
- 27.
The courts also dismissed the physicians’ s. 15 equality claim, primarily based on their view that physicians could easily “transition to other areas of medicine in which these issues of faith or conscience are less likely to arise, if at all” (Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393 at para 94). This could potentially be distinguished with different evidence in the future (especially if MAID eligibility expands and becomes applicable in more areas of medicine), but at a fundamental level, it seems to ignore the principle that “the fact that a person could avoid discrimination by modifying his or her behaviour does not negate the discriminatory effect”; see Lavoie v Canada [2002] 1 SCR 769 at para 5 (per McLachlin CJC, dissenting, but not on this point).
- 28.
Carter v Canada, 2015 BCSC 886 at para 173.
- 29.
Criminal Code of Canada, RSC 1985, c C-64, s. 241.1, “medical assistance in dying”.
- 30.
See Suresh Bada Math and Santosh K Chaturvedi, “Euthanasia: Right to live vs right to die” (2012) 136:6 Indian J Med Res, online: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3612319/. This paper considers the “complex medical, social and legal dilemma” of euthanasia in court decisions in India.
- 31.
Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551 at para 39.
- 32.
Currently, MAID is not available in cases where the sole underlying condition is a mental disorder, however, Bill C-7 will remove this exclusion as of March 2024. See also Coelho et al. (2022), citing research highlighting “the known risk of providing psychiatric MAD to suicidal individuals who would otherwise benefit from suicide prevention strategies” and that a significant number of psychiatrists oppose MAID solely on the grounds of mental illness.
- 33.
The federal government is exploring the expansion of MAID to “mature minors”. See also “Normalizing Death”, ibid.: “Evidence related to new illness or injury shows that suicidality is often present at the outset…but it is not enduring in the long run”.
- 34.
The Collège des médecins du Québec is advocating for the legalization of pediatric euthanasia for infants born with “severe deformities” in certain circumstances—see note 81, infra.
- 35.
See e.g. Simpson et al. (2022).
- 36.
Numerous media reports have highlighted examples of such cases. See also Alexander Raikin, “No Other Options”, The New Atlantis (Winter 2023), online: https://www.thenewatlantis.com/publications/no-other-options.
- 37.
This aspect of conscience was ignored in Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393, where the court instead accepted arguments that conscientious objectors would effectively “abandon their role as patient navigators” (see paras 102 and 160).
- 38.
Of course, this characterization of religious thought is problematic in its own right and must similarly be resisted in freedom of religion claims; religious beliefs are often profound, sophisticated, and well-considered by the claimant.
- 39.
Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393 at paras 66, 73, 77.
- 40.
Ibid. at paras 102, 160, 187. See also Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (Div Ct) at paras 181, 197.
- 41.
Once it is established that government action or policy limits a Charter freedom, the government has the opportunity to convince the court that the limitation is reasonable and “demonstrably justified in a free and democratic society” under section 1 of the Charter.
- 42.
The claimants were perceived as seeking to “preserve their rights” and not the “interests of vulnerable patients”: Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393 at paras 129, 160 (emphasis in original).
- 43.
Chamberlain v Surrey School District No. 36, 2002 SCC 86 at para 59: “…the fact that some parents and Board members may have been motivated by religious views is of no moment.” See also para 137 (Gonthier J in dissent, but not on this point): “According to the reasoning espoused by [the lower court], if one’s moral view manifests from a religiously grounded faith, it is not to be heard in the public square, but if it does not, then it is publicly acceptable. The problem with this approach is that everyone has ‘belief’ or ‘faith’ in something, be it atheistic, agnostic, or religious. To construe the ‘secular’ as the realm of ‘unbelief’ is therefore erroneous. Given this, why, then, should the religiously informed conscience be placed at a public disadvantage or disqualification? To do so would be to distort liberal principles in an illiberal fashion and would provide only a feeble notion of pluralism.” (emphasis added).
- 44.
For further discussion on how religious claimants can be perceived as “the other”, see Derek Ross and Deina Warren, “Religious Equality: Restoring Section 15’s Hollowed Ground” (2019) 91 SCLR (2d).
- 45.
See Canadian Association of MAID Assessors and Providers, Bringing up Medical Assistance in Dying (MAiD) as a clinical care option, (Victoria: CAMAP, 2022), online: https://camapcanada.ca/wp-content/uploads/2022/02/Bringing-up-MAiD.pdf. The CAMAP document is referenced by the CPSO in its new draft “Advice to the Profession: Medical Assistance in Dying”, online: http://policyconsult.cpso.on.ca/wp-content/uploads/2022/08/Medical-Assistance-in-Dying_Draft-Advice.pdf. Physicians, however, might conscientiously object to this requirement, concluding that initiating a discussion about MAID with a patient who is not seeking it could (1) send the message that the physician is of the view that the patient’s life might not be worth living, (2) lead the patient to internalize this view herself. Again, this position is both an ethical conclusion and one rooted in medical considerations. A number of disability organizations have raised similar concerns about the devastating impact and trauma that can be experienced by a patient having MAID suggested to them as a “treatment option”; after its hearings on Bill C-7 in 2021, the Standing Senate Committee on Legal and Constitutional Affairs made the following observation: “Requests for MAiD should be strictly patient-initiated. The committee heard from many witnesses that the inherent power imbalance between patients and their medical practitioners constitutes a big challenge for ensuring that patients are making free and informed choices and are not inappropriately coerced into seeking access to MAiD.” See Senate of Canada, “Observations to the fourth report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-7”) (43rd Parliament, 2nd Session), online: https://sencanada.ca/en/committees/LCJC/Report/90681/43-2 (emphasis added).
- 46.
Of course, freedom of religion also protects freedom from coerced action, and freedom of conscience may also engage external manifestations. But this does not mean that the two protections are identical, nor are they substitutes for one another.
- 47.
This is a foundational principle of the Universal Declaration of Human Rights, which affirms that all human beings are “endowed with reason and conscience and should act towards one another in a spirit of brotherhood”. See United Nations General Assembly, “Universal Declaration of Human Rights”, GA/Res 217A (10 December 1948).
- 48.
See, for example, Justice Linden’s comments in Roach v Canada (Minister of State for Multiculturalism & Culture) (1994), 113 DLR (4th) 67 (Fed CA): “It seems, therefore, that freedom of conscience is broader than freedom of religion. The latter relates more to religious views derived from established religious institutions, whereas the former is aimed at protecting views based on strongly held moral ideas of right and wrong, not necessarily founded on any organized religious principles. These are serious matters of conscience.”
- 49.
This highlights another concern with considering religion to the exclusion of conscience: the s. 1 analysis may be very different, depending on the freedom in question. Certain interests protected by conscience, which might not be protected by religion, would not be considered at all in the proportionality analysis.
- 50.
Jamie Cameron, “Resetting the Foundations: Renewing Freedom of Expression under Section s. 2(b) of the Charter” (2022) 105 SCLR (2d) 121 at 143.
- 51.
Ibid.
- 52.
See, for example, Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393 at para 187, which seems to view the physician claimants as prioritizing their personal interests over their professional obligations and/or the interests of their patients.
- 53.
Ibid. at para 123.
- 54.
Addressing moral concerns is one of the criminal law’s core purposes: “Every generation faces unique moral issues. And historically, every generation has turned to the criminal law to address them. […] Morality has long been recognized as a proper basis for the exercise of the criminal law power” (Reference re Assisted Human Reproduction Act, 2010 SCC 61 at paras 1, 49, per McLachlin CJC). See also Reference re Genetic Non-Discrimination Act, 2020 SCC 17 at para 90.
- 55.
See, for example, Chamberlain v Surrey School District No. 36, 2002 SCC 86 at paras 65–66.
- 56.
For example, the CPSO’s current policy seems to assume that a physician’s conscientious objection “is due to personal and not clinical reasons”, and requires physicians to inform patients of same. This appears to overlook the fact that a physicians’ ethical framework and approach to MAID may also be informed by medical/clinical considerations. See College of Physicians and Surgeons of Ontario, “Medical Assistance in Dying” (June 2016, last updated April 2021), online: https://www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Medical-Assistance-in-Dying. While the CPSO’s new, draft policy (see note 16, supra) does not include this phrase, the implication remains that conscientious objections are of a separate and distinct category from clinical considerations.
- 57.
Christian Legal Fellowship, “Submissions of Christian Legal Fellowship re: The College of Physicians and Surgeons of Ontario’s (CPSO) policies concerning Medical Assistance in Dying and Professional Obligations and Human Rights” (14 May 2021), online: https://static1.squarespace.com/static/57503f9022482e2aa29ab3af/t/609ef13c76d9926869ed4fec/1621029180353/CLF+submission+to+CPSO+re+MAID+and+POHR+policies+-+May+14%2C+2021.pdf. Even where physicians are legislatively granted a “gatekeeping” role in connection with a particular regime, “they remain bound by their own ethics and codes of conduct” and may decline to participate (such as in providing medical marijuana): see R v Mernagh, 2013 ONCA 67 at para 88 (per Doherty JA, concurring).
- 58.
Factum of the Interveners The Evangelical Fellowship of Canada, The Assembly of Catholic Bishops of Ontario, and The Christian Legal Fellowship (whom the authors represented as litigation counsel in CMDS v CPSO) (Court of Appeal file no. C65397) at para 15 (references omitted; emphasis added), quoting Flora v Ontario Health Insurance Plan, 2008 ONCA 537 at para 75. See also AC v Manitoba, 2009 SCC 30 at para 143, where the majority observed: “Judgment is a function, not only of intellectual understanding of treatment and the consequences of refusing it, but of experience and independence […] it requires ‘ethical, emotional maturity’”. While this was in the context of a patient exercising medical judgment, the same principles, in our view, apply to physicians.
- 59.
For an insightful doctrinal discussion on “what must be proven to conclude that the state has limited freedom of conscience” see Brian DN Bird, The Forgotten Fundamental: Freedom of Conscience in Canada (DCL Thesis, McGill University, 2021), online: https://escholarship.mcgill.ca/concern/theses/4j03d4180, at pp. 158–170. Bird identifies some threshold criteria, including that the limitation (1) be more than “trivial or substantial” (drawing from religious freedom jurisprudence), and (2) require the claimant to materially cooperate, at a requisite degree of proximity, in an act they sincerely view as unethical.
- 60.
Syndicat Northcrest v Amselem, 2004 SCC 47 at para 39.
- 61.
R v Morgentaler [1988] 1 SCR 30 at 165 and 179.
- 62.
Freedom of conscience is listed as a “fundamental freedom” in s. 2, and like all other fundamental freedoms, is separately delineated from the “right to liberty” in s. 7.
- 63.
William Shakespeare, The Tragedy of Hamlet, Prince of Denmark at Act 4, Scene 1.
- 64.
Gary M Galles, “Lord Acton on the Meaning of Freedom”, Fee Stories (24 September 2017), online: https://fee.org/articles/lord-action-on-the-meaning-of-freedom.
- 65.
Brian Bird, “The Reasons for Freedom of Conscience” (2020) 98 SCLR (2d).
- 66.
Reference re Secession of Quebec, [1988] 2 SCR 217 at para 68.
- 67.
Kathleen Brady, “Religious Group Autonomy: Further Reflections About What is at Stake” (2006/2007) 22:1 J.L. & Religion 153; and Derek Ross, “Truth Seeking and the Unity of the Charter’s Fundamental Freedoms” (2020) 98 SCLR (2d).
- 68.
Jamie Cameron, “Resetting the Foundations: Renewing Freedom of Expression under Section s. 2(b) of the Charter” (2022) 105 SCLR (2d) at 140–141 (references omitted, emphasis added by Cameron, citing V. Blasi, “Holmes and the Marketplace of Ideas” (2004) Sup. Ct. Rev. 1 at 29).
- 69.
See Julia Laffranque, “Dissenting Opinion and Judicial Independence” (2003) 8 Juridica Intl, 162 at 169, discussing this idea in the context of judicial independence.
- 70.
A.G. Can. v. Law Society of B.C. (1982), 335–336 (per Estey J, discussing the independence of the bar).
- 71.
Cristin Schmitz, “Litigators’ champion celebrates five years at SCC, looks forward to five more years”, Lawyers Daily (8 May 2020), online: https://www.thelawyersdaily.ca/articles/18911/litigators-champion-celebrates-five-years-at-scc-looks-forward-to-five-more-years?article_related_content=1 (emphasis added).
- 72.
Ibid. See also the comments of Justice Bernice B. Donald (U.S. Court of Appeals for the Sixth Circuit), who emphasizes the importance of the right to dissent and the “enormous value it can have as an expression of legal conscience”, describing it as a “pillar of judicial independence”; see Bernice B. Donald, “Judicial Independence, Collegiality, and the Problem of Dissent in Multi-Member Courts” (2019) 94:3 NYU L Rev, 317 at 339.
- 73.
See, for example, Bill 34, The Medical Assistance in Dying (Protection for Health Professionals and Others) Act (assented to 10 November 2017) CCSM c M92.
- 74.
World Medical Association, “WMA Declaration on Euthanasian and Physician-Assisted Suicide: Adopted by the 70th WMA General Assembly, October 2019” (23 November 2021), online: https://www.wma.net/policies-post/declaration-on-euthanasia-and-physician-assisted-suicide/.
- 75.
See, for example, Michael Quinlan, “When the State Requires Doctors to Act Against their Conscience: The Religious Freedom Implications of the Referral and the Direction Obligations of Health Practitioners in Victoria and New South Wales”, (2017) 2016:4 BYU L Rev 1237 at 1271: “Health practitioners who consistently act against their conscience can also become desensitized to it. They are at greater risk of developing indifference to patients and ‘doubling’ or ‘compartmentalization,’ leading to a weakened ability to make the types of ethical decisions critical for health practitioners.”
- 76.
Carter v Canada, 2012 BCSC 886 at para 323.
- 77.
Christian Legal Fellowship, “Submissions of Christian Legal Fellowship re: The College of Physicians and Surgeons of Ontario’s (CPSO) policies concerning Medical Assistance in Dying and Professional Obligations and Human Rights” (14 May 2021), online: https://static1.squarespace.com/static/57503f9022482e2aa29ab3af/t/609ef13c76d9926869ed4fec/1621029180353/CLF+submission+to+CPSO+re+MAID+and+POHR+policies+-+May+14%2C+2021.pdf.
- 78.
Ibid.
- 79.
Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), 2nd Sess, 43rd Parl, 2021 (assented to 17 March 2021), SC 2021, c 2. MAID for mental illness as a sole underlying condition was originally legislated to be introduced in March 2023. In response to concerns that proper safeguards are not yet in place, Parliament voted to delay introducing this next step of expansion until March 2024; See Department of Justice Canada, “Statement by Ministers Lametti, Duclos and Bennett on medical assistance in dying in Canada” (15 Dec 2022), online: https://www.canada.ca/en/department-justice/news/2022/12/statement-by-ministers-lametti-duclos-and-bennett-on-medical-assistance-in-dying-in-canada.html.
- 80.
Standing Committee on Veterans Affairs, Evidence, 44-1, No. 27 (24 November 2022).
- 81.
Special Joint Committee on Medical Assistance in Dying, Evidence, 44-1, No 19 (7 October 2022) at 10:00 (Dr. Louis Roy, on behalf of the Collège des médecins du Québec): “With support from the board of directors, the committee recommended that emancipated minors be able to apply for MAID in conjunction with their parental authority or guardian. […] The same is true for babies from birth to one year of age who come into the world with severe deformities and very serious syndromes for which the chances of survival are virtually nil…”
- 82.
The Special Joint Committee on Medical Assistance in dying is currently exploring the issue of MAID for mature minors and MAID by advance requests.
- 83.
Carter v Canada, 2015, SCC 5 at para 117. Even MAID providers have testified that the current regime is so ill-defined, it “can render the legislative safeguards impotent.” Special Joint Committee on Medical Assistance in Dying, Evidence, 44-1, No 19 (18 October 2022) at 19:40 (Dr. Madeline Li).
- 84.
See, for example.: Catalina Devandas-Aguilar, “Visit to Canada: Report of the Special Rapporteur on the rights of persons with disabilities”, Human Rights Council, 43rd Sess, A/HRC/43/41/Add.2 (19 December 2019), online: https://www.un.org/en/ga/search/view_doc.asp?symbol=A/HRC/43/41/Add.2; The Expert Panel Working Group on Advance Requests for MAID, “The State of Knowledge on Advance Requests for Medical Assistance in Dying”, Council of Canadian Academies (2018) Ottawa (ON), ISBN: 978-1-926522-51-7; The Expert Panel Working Group on MAID for Mature Minors, “The State of Knowledge on Medical Assistance in Dying for Mature Minors”, Council of Canadian Academies (2018) Ottawa (ON, ISBN: 978-1-926522-46-3; The Expert Panel Working Group on MAID Where A Mental Disorder Is the Sole Underlying Medical Condition, “The State of Knowledge on Medical Assistance in Dying Where a Mental Disorder Is the Sole Underlying Medical Condition”, Council of Canadian Academies (2018) Ottawa (ON), ISBN: 978-1-926522-48-7; Gerard Quinn, Claudia Mahler, and Olivier De Schutter, “Disability is not a reason to sanction medically assisted dying—UN experts” (25 January 2021), online: https://www.ohchr.org/en/press-releases/2021/01/disability-not-reason-sanction-medically-assisted-dying-un-experts?LangID=E&NewsID=26687.
- 85.
See, for example, the recent comments of the Expert Panel on MAiD and Mental Illness: “If there are cases whose characteristics do not correspond with an assessor’s own values, objecting on conscience grounds may be appropriate.”: “Final Report of the Expert Panel on MAiD and Mental Illness”, Health Canada (May 2022), online: https://www.canada.ca/content/dam/hc-sc/documents/corporate/about-health-canada/public-engagement/external-advisory-bodies/expert-panel-maid-mental-illness/final-report-expert-panel-maid-mental-illness/final-report-expert-panel-maid-mental-illness.pdf.
- 86.
See R v Morgentaler [1988] 1 SCR 30 at 165 and 179.
- 87.
R v Big M Drug Mart, [1985] 1 SCR 295 at 346.
- 88.
Chamberlain v Surrey School District No. 36, 2002 SCC 86 at para 65.
References
AC v Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 SCR 181.
AG Can v Law Society of BC [1982] 2 SCR 307.
Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), 2nd Sess, 43rd Parl, 2021 (assented to 17 March 2021), SC 2021, c 2.
Bill 34, The Medical Assistance in Dying (Protection for Health Professionals and Others) Act (assented to 10 November 2017) CCSM c M92.
Bird, Brian. 2018. The Call in Carter to interpret freedom of conscience. SCLR (2d) 85: 107–141.
Bird, Brian. 2021. The forgotten fundamental: Freedom of conscience in Canada (DCL Thesis, McGill University). Online: https://escholarship.mcgill.ca/concern/theses/4j03d4180
Bird, Brian. 2020. The reasons for freedom of conscience. SCLR (2d) 98.
Bird, Brian, Dwight Newman, and Derek Ross. 2020. The Charter’s forgotten fundamental freedoms. Policy Options (16 June 2020). Online: https://policyoptions.irpp.org/magazines/june-2020/the-charters-forgotten-fundamental-freedoms/
Brady, Kathleen. 2006. Religious group autonomy: further reflections about what is at stake (2006/2007). J.L. & Religion 22 (1): 153.
Bussey, Barry W. 2020. Blazing the path: Freedom of conscience as the prototypical right. SCLR (2d) 98.
Cameron, Jamie. 2022. Resetting the foundations: Renewing freedom of expression under Section s.2(b) of the Charter. SCLR (2d) 105: 121.
Canadian Medical Association. 2017. CMA policy: Medical assistance in dying. Online: https://policybase.cma.ca/viewer?file=%2Fmedia%2FPolicyPDF%2FPD17-03.pdf
Carter v Canada, 2012 BCSC 886.
Carter v Canada, 2015 SCC 5.
Chamberlain v Surrey School District No. 36, 2002 SCC 86.
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Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (Div Ct).
Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393.
Coelho, Ramona, K. Sonu Gaind, Trudo Lemmens, and John Maher. 2022. Normalizing death as a ‘treatment’ in Canada: whose suicides do we prevent, and whose do we abet? World Medical Journal 70 (3): 27–35.
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We are grateful to Jamie Cameron and Brian Bird for their thoughtful comments on earlier drafts of this paper, and to Garifalia Milousis for her editorial review. Any errors are solely our own.
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Ross, D., Warren, D. (2023). The Importance of Conscience as an Independent Protection. In: Kotalik, J., Shannon, D.W. (eds) Medical Assistance in Dying (MAID) in Canada . The International Library of Bioethics, vol 104. Springer, Cham. https://doi.org/10.1007/978-3-031-30002-8_26
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