TORONTO, ON November 6, 2015 – On Thursday, November 5, Catholic Civil Rights League (CCRL) president Phil Horgan and executive director Christian Elia appeared in Toronto before the External Panel on Options for a Legislative Response to Carter v. Canada. The CCRL had been invited to make a presentation and to answer panel members’ questions pertaining to physician assisted death (PAD) in the wake of the Supreme Court of Canada’s unanimous decision in February 2015 to strike down provisions in the criminal code against physician assisted suicide (PAS), giving Parliament until February 2016 to legislate terms of the new regime of mercy killing in Canada.
The CCRL had intervened at the Supreme Court of Canada with fierce opposition to any form of euthanasia, mercy killing or assisted suicide. Horgan and Elia restated the CCRL’s opposition to this imposition by the Supreme Court of a new Canadian regime of assisted suicide. Unwilling to be complicit in PAS/PAD recommendations that might ultimately lead to an unjust and immoral law, the CCRL instead called for the External Panel and the federal government to recognize and insist upon the adequate provision of palliative care for end of life situations.
The CCRL asserted the need for robust protection for the freedoms of everyone who declines or opposes PAD for reasons of conscience or religion.
Here is the CCRL’s written submission:
November 5, 2015
The Catholic Civil Rights League (CCRL) thanks the External Panel for inviting us to make these submissions.
About the Catholic Civil Rights League (CCRL)
The Catholic Civil Rights League (CCRL) assists in creating conditions within which Catholic teachings can be better understood, cooperates with other organizations in defending civil rights in Canada, and opposes defamation and discrimination against Catholics on the basis of their beliefs. The CCRL was founded in 1985 as an independent lay organization with a large nationwide membership base representing all provinces and territories. The CCRL is a Canadian non-profit organization entirely supported by the generosity of its members.
Introduction
We make reference to Catholic theologian George Weigel, who on July 30, 2015 remarked:
In Catholic social doctrine, there are settled matters, and then there are issues whose resolution in terms of law and public policy can be legitimately debated and contested. Among the settled matters are the inalienable dignity and value of every human life from conception until natural death; the priority of the first freedom, religious freedom, in any meaningful scheme of civil and political rights; the priority of civil society over the state; the right of workers to form associations to promote their interest; and the duty of all — business, labour, voluntary associations — to conduct themselves in ways that contribute to the common good and not simply to their own benefit or aggrandizement.
The Catholic Civil Rights League (CCRL) submits the following:
1. As stated in Catholic teaching, we oppose any form of euthanasia, mercy killing or assisted suicide.
2. The External Panel must recognize the inadequacy of the Supreme Court’s ruling in the provision of assistance in reaching a new legislative framework, and should so advise Parliament, such that a substantially longer period is needed to respond adequately to the Carter decision, inclusive of reliance upon the notwithstanding clause of the Charter.
3. The External Panel and the federal government needs to recognize and insist upon the adequate provision of palliative care for end of life situations.
4. The CCRL asserts the need for robust protection for the freedoms of everyone who declines or opposes physician assisted death (PAD), for reasons of conscience or religion.
1. Opposition to Any Form of Euthanasia, Mercy Killing or Assisted Suicide
The CCRL repeats the recent submission from the Joint Statement of the Canadian Conference of Catholic Bishops (CCCB) and the Evangelical Fellowship of Canada (EFC) and other religious leaders (October 28, 2015):
The sanctity of human life is a foundational principle of Canadian society. It has both individual and communal import: it undergirds the recognition of the equal dignity of each individual regardless of their abilities or disabilities and shapes and guides our common life together, including our legal, health care and social welfare systems. It engenders the collective promotion of life and the protection of the vulnerable.
While Canadian society continues to affirm the importance of human dignity, there is a worrisome tendency to define this subjectively and emotionally. For us, human dignity is most properly understood as the value of a person’s life before her or his Creator and within a social network of familial and societal relationships. We are convinced the only ways to help people live and die with dignity are: to ensure they are supported by love and care; to provide holistic care which includes pain control as well as psychological, spiritual and emotional support; and, to improve and increase resources in support of palliative and home care.
On the basis of our respective traditions and beliefs, we insist that any action intended to end human life is morally and ethically wrong. Together, we are determined to work to alleviate human suffering in every form, but never by intentionally eliminating those who suffer.
The CCRL also reiterates aspects of Catholic teaching, and affirms the submission of the Canadian Conference of Catholic Bishops in its submission to this External Panel in opposing the imposition of the granting of assistance in dying. The CCCB has demonstrated the consistency by the Catholic Church in the continued opposition to the implementation of any form of euthanasia or assisted suicide. We support the Church’s invitation to all Canadians to build a society that respects the dignity of the human person.
Direct Euthanasia is Morally Unacceptable
Whatever its motives and means, direct euthanasia consists in putting an end to the lives of handicapped, sick, or dying persons. It is morally unacceptable. Thus an act or omission which, of itself or by intention, causes death in order to eliminate suffering constitutes a murder gravely contrary to the dignity of the human person and to the respect due to the living God…. – Catechism of the Catholic Church, n. 2277
Intentional Euthanasia is Murder
Intentional euthanasia, whatever its forms or motives, is murder. – Catechism of the Catholic Church, n. 2324
Suicide is Gravely Contrary to the Just Love of Self
Suicide contradicts the natural inclination of the human being to preserve and perpetuate his life. It is gravely contrary to the just love of self. It likewise offends love of neighbor because it unjustly breaks the ties of solidarity with family, nation, and other human societies to which we continue to have obligations. Suicide is contrary to love for the living God. –Catechism of the Catholic Church, n. 2281
Suicide is Seriously Contrary to Justice
Suicide is seriously contrary to justice, hope, and charity. – Catechism of the Catholic Church, n. 2325
2. The Supreme Court of Canada (SCC) Failed to Address Other Legislative Issues
The CCRL warned of the dangers of a new era of “suicide relativism” in the wake of Carter.
The SCC failed to mention that nine different motions or legislative attempts had been raised in Parliament in the past 23 years, with six separate votes on the issue, all of which rejected efforts to change the law, recognizing the risks to the most highly vulnerable. The Court’s decision cannot be considered a “dialogue” with the legislature, but more of a dictation, and that dictation should be resisted.
Further, given that history, Parliament will need more time to prepare and consider a legislative response. The federal government must give serious consideration to the Charter’s notwithstanding clause, to allow more time for serious reflection on the merits of what is a new regime in Canada, especially given the interruption of the federal election. Recently, there has been speculation that the government will ask for a six month extension. This is wholly inadequate to begin to even address the serious concerns raised by the CCRL and other groups opposed to PAD, euthanasia or any form of mercy killing.
It was only in 2012 that Parliament gave its unanimous support for a national anti-suicide prevention policy. The SCC has undercut such legislative enactments. While Parliament maintained that suicide is to be prevented, the Supreme Court has imposed a new proposition that suicide can be a “good”, if certain conditions are met.
It should be noted that the Court’s decision to allow the provisions of the Code to be struck down is of general application, but by its terms was explicitly stated to address only the facts of the case presented, i.e. based on a competent adult, with an irremediable and grievous medical condition, where there was intolerable suffering. In its reasons, the Court stated: “We make no pronouncement on other situations where physician assisted dying may be sought”, thus opening the door to future challenges.
By the same token, this External Panel has been provided with the ability to address the serious shortcomings of a court decision which, by its nature, fails to take into account the myriad issues raised.
For example, the Supreme Court did not mention that in striking down the provisions criminalizing physician assisted death, it did not make any provision for striking down the provisions of s. 245 of the Code, so as to allow for administration of a noxious substance, or other provisions against the counselling toward suicide in general.
Margaret Dore, a lawyer in the state of Washington, where assisted suicide is legal, is the president of Choice is an Illusion, a non-profit agency opposed to assisted suicide and euthanasia. Based on her observations and research, the allowance for modest proposals for physician assisted suicide quickly are enlarged over time, such that individuals who may have years to live are encouraged to take their life prematurely. Assisted suicide regimes lead to abuse of the aged, especially from those who stand to inherit. The next push will be to expand euthanasia to non-terminal individuals, or the allowance of individuals other than doctors to prescribe death drugs.
A full legislative response would require analysis of other provisions of the Criminal Code, a medical engagement by leading experts, and serious public engagement, rather than a slapdash imposition by the Supreme Court of what it believes would cover the demands of the litigants and their counsel.
3. Failure to Provide Adequate Support for Palliative Care
The Supreme Court’s new regime has failed to address or take into account at all, the inadequacy of palliative care as a treatment option in Canada.
Only 16% to 30% of Canadians who die currently have access to or receive hospice palliative and end-of-life care services – depending on where they live in Canada, according to the Canadian Institute for Health Information, Health Care Use at the End of Life in Western Canada (Ottawa: CIHI, 2007).
In 2011, The Parliamentary Committee on Palliative and Compassionate Care (PCPCC) sought means of addressing the nation’s shortfalls. The PCPCC’s report “Not to be Forgotten: Care of Vulnerable Canadians” focussed specifically on three areas: palliative care, suicide prevention and elder abuse.
Again, the February 2015 decision to overturn Carter turns the work of the Parliamentary Committee on its head as the nation has gone from suicide prevention to promoting suicide as a societal good.
It was only in May of 2014 that the House of Commons passed NDP MP Charlie Angus’s motion for a federal government to cooperate with the provinces and territories to ensure access to “high-quality, home-based and hospice palliative care,” provide more support to caregivers, and encourage Canadians to “discuss and plan for end-of-life care.” Mr. Angus and other MPs specifically stated that PAD and euthanasia had no place in that national dialogue. The SCC’s decision has completely undermined this dialogue.
4. The Challenge of Protection of Conscience Rights
The CCRL has expressed its position of opposition to any form of euthanasia, mercy killing, and assisted suicide.
As we submitted at the Supreme Court, we further asserted that the right to the exercise of freedom, especially in moral and religious matters, is an inalienable requirement of the dignity of the human person. This right must be recognized and protected by civil authority within the limits of the common good and public order.
The CCRL submitted in its intervention that clear language was required from the Court to assert the primacy of conscientious rights of healthcare professionals. The Supreme Court stepped back from making any such pronouncement, preferring to allow a future “reconciliation” of competing rights claims.
In his submissions in Carter, Joseph J. Arvay, Q.C., made clear that the appellants never argued that any physician should be compelled to perform physician assisted suicide.
As we have submitted in other venues, however, there is clear danger with any change in the legislative matrix to allow physician assisted death to have those in health care to participate in “wrong”. The most obvious example has been seen in provincial professional Colleges to provide “effective referrals”, which crosses the line into a medical professional’s conscience, by requiring them to participate in moral evil.
In Carter, it should be remembered that the Canadian Civil Liberties Association sought to decriminalize the Criminal Code provisions primarily on the basis of personal autonomy – i.e. if a competent patient sought to be killed, the medical professional should assist, regardless of the underlying medical condition.
While not the focus of this submission, in jurisdictions where physician assisted death has been “legalized”, the sufficiency of “safeguards” has proven illusory.
The Supreme Court has imposed a new jeopardy on healthcare providers who refuse to assist in patient suicide. The CCRL’s intervention in Carter emphasized that most Canadian healthcare providers consider physician assisted death immoral or unethical for reasons of conscience or religion. These healthcare providers may now be confronted by demands that they directly or indirectly participate in what they consider to be immoral actions.
5. Freedom of Conscience and Religion
We have asserted that the test for triggering a conscience freedom claim should be the same as a religious freedom claim: a) does the claimant have a moral practice or belief that calls for a particular line of conduct; and b) is he or she sincere in his or her belief? It should be noted that a healthcare provider’s objection to participating in physician assisted death may equally arise from his or her religious beliefs.
The prospect of further discrimination against healthcare providers who refuse to participate in physician assisted death is apparent, in denial of hospital privileges, being barred from certain institutions owing to conscientious beliefs, and denial of career advancement. The particular threat to medical, nursing, and other healthcare school systems is likewise apparent.
Relying upon “autonomy” as a principle on which to impose a patient’s demand for physician assisted death ignores the autonomy of the healthcare professional to make his/her own professional choices.
Acceptance of patient autonomy over the autonomy of healthcare providers disregards interdependency, diversity, and authentic pluralism (civil disagreement in the public square) in favour of a notion of conformity of one conception of the good life.
The CCRL submits that it is insufficient for Parliament to permit healthcare providers to refuse to provide or take part in physician assisted death. Any scheme promoting “safeguards” ultimately leads to weakening or ignorance of such safeguards in practice.
Any scheme for physician assisted death, which the CCRL cannot accept in principle, will be further deficient in the absence of robust protections in favour of healthcare providers from being intimidated (either directly or indirectly) into consulting, planning, or referring for physician assisted death. The CCRL believes that coincident provisions of the Criminal Code will be required to protect conscience rights of healthcare workers from such coercion.
A formal process will be needed to assure that the substantive aspects of patient competency, capacity, and provision of palliative care have been exhausted, which may provide relief to address most situations.
Any process recommended by this Panel will need to be the subject of independent scrutiny, and subsequent Parliamentary review.
Existing provisions of the Criminal Code remain necessary to maintain the criminalization of counselling toward suicide, or the illegal administration of noxious substances.
Professional Colleges in Saskatchewan and Ontario are in the process of imposing such demands, including the contentious issue of mandatory referral by objecting physicians to another doctor. The League has asserted such demands require an objecting physician to participate in “wrong”. Where provincial Colleges have already mandated such referrals, doctors are now exposed to professional disciplinary charges. Can migration from the profession in Canada be far behind? Are Catholics or other religious adherents to be driven out of the practice of medicine?
At a minimum, the League asserts the need for robust protection for the freedoms of everyone who declines or opposes physician-assisted death, for reasons of conscience or religion.
Respectfully submitted, in Toronto, on November 5, 2015
Philip Horgan, President
Catholic Civil Rights League
Christian Domenic Elia, Executive Director
Catholic Civil Rights League
About the CCRL
Catholic Civil Rights League (CCRL) (www.ccrl.ca) assists in creating conditions within which Catholic teachings can be better understood, cooperates with other organizations in defending civil rights in Canada, and opposes defamation and discrimination against Catholics on the basis of their beliefs. The CCRL was founded in 1985 as an independent lay organization with a large nationwide membership base. The CCRL is a Canadian non-profit organization entirely supported by the generosity of its members.
For further information:
Christian Domenic Elia, PhD
CCRL Executive Director
416-466-8244
@CCRLtweets