Ladies and gentlemen, thank you very much for having me here tonight. I'm here on behalf of the Justice Centre for Constitutional Freedoms, which is a non-partisan, non-religious charitable organization. Our emphasis is focusing on the charter rights of Canadians, with a special emphasis on the charter rights found in section 2.
I'll start by complimenting the attorney general on Bill C-14, because I think there's much in it that's commendable. While I'm here tonight to talk about conscience rights specifically, I think it's important, given what I've heard here so far tonight, to mention that we believe that Bill C-14 gets a number of things right. It keeps accessibility to this to people who are adults. It keeps the decision with respect to access made for those who are competent at the time of making the decision. We think it gets right that an individual needs a physical ailment and that a person must be mentally sound.
A timely report was released today by what was formerly known as the British Medical Journal. It's now called the BMJ. It was released today. It's been reported on internationally. What it said was that medical error is the third-leading cause of death in the United States. I just want this committee to think about what that means. That means that the medical community, when they're attempting to save somebody's life and prolonging health, kills almost as many people—the third-leading cause of death—as cancer and heart disease in the United States. The system of reporting deaths in Canada, the U.S., and the U.K. relies on what's known as a mortality coding system. It doesn't capture death from medical failure, so it's unknown exactly how many people are being killed accidentally in Canada by the medical community.
My point in referencing that is simply this: mistakes happen, and there are people who are vulnerable in this country who need to be protected. It's apparent that they need to be protected from the very people who are being given licence right now to assist a person to die. It's with great solemnity, I think, that this issue comes before this committee.
The court in Carter said that “Complex regulatory regimes are better created by Parliament than by the courts.” It was in the context of noting the need for legislative reform to allow for medical assistance in dying that the court discussed and reiterated the conscience and religious rights of medical practitioners, stating that “nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying.” That's at paragraph 132. Instead the court underlined that “The Charter rights of patients and physicians will need to be reconciled...”. It was within the rubric of reconciling those rights that the court in Carter suggested statutory balancing, statutory address. Unfortunately, Bill C-14 fails to do that.
It's our continued recommendation that, in order to comply with Carter, Bill C-14 should codify the protections for the conscience rights of physicians, nurses, pharmacists, and other health care workers, as well as health care organizations and institutions, to refuse to participate in and refuse to refer for MAID.
The applicants in Carter neither sought nor received a charter right to compel doctors or health care workers to provide or refer for MAID. Despite that fact, the colleges of physicians as well as nurses' associations have instituted requirements that their respective members participate in MAID in disregard of members' conscience rights, on pain of professional sanction and reprisal in some cases. This is Parliament's opportunity to bring uniformity and clarity to the issue of conscience rights, and was made for that reason.
I have two pragmatic reasons in addition to the reasons that were set forward before the subcommittee. First of all, tens of thousands of Canadians trust and rely daily on medical practitioners to perform their duties in an ethical and conscientious manner in the provision of service. The provincial colleges of physicians have ethical requirements for doctors, and they expect physicians to be governed by a strong sense of moral and ethical responsibility.
We say that this committee has to consider the ramifications of overriding a physician's conscience in one aspect of service and then expecting that same physician to act in a conscientious or ethical manner in all of these other service requirements.
We also say it's important for Parliament to recognize that what Carter was talking about was a balancing of rights. There is a right to die recognized in Carter, but there are also rights for medical practitioners. It's important not to lose sight of the forest for the trees. The people who under this current Bill C-14 will be implementing MAID are the people who will wake up tomorrow morning, look themselves in the eye, continue on with their daily business, and know that they performed their duties in an ethical and conscientious manner. The people who have availed themselves of MAID will be gone, but the medical practitioners will still be here.
In my respectful submission—I don't mean to be trite—is it a proper balancing, looking at somebody's life on the verge of expiring, weighed against the decades of medical practitioners who still, on a day-to-day basis, must act in a conscientious and ethical manner? Is it not disproportionate to focus solely, or almost exclusively, on the rights of patients as opposed to those who are tasked with implementing MAID?
We say it is. We say a proper balancing would never oblige an individual to participate in MAID. There have been lots of discussions about whether or not it's legal or constitutional to include a protection in Bill C-14 for conscience rights. We say it is.
First of all, it is clear that right now Bill C-14 is dictating how MAID can be implemented and who can implement it. It is making regulations. It is making laws, or it purports to make laws, with respect to how MAID is to be carried out in the province. If the province is the sole entity that can make laws with respect to MAID, then this legislation would be offside. It's clear that this is not the case. We say it's apparent that conscience rights can be protected.
I would direct your attention to the circumstances in this example, one out of a number that we've thought of. Of course, the general rule with respect to culpable homicide is that there's no killing. It's sort of similar to the general rule that if you are a Canadian individual or organization, you have to pay taxes, because federal taxes are the purview of Parliament. Charities are controlled by the provinces, under section 92 of the Constitution Act, 1867, and yet charitable organizations have to make application to the federal government to both obtain charitable status and continue it. The reason that's the case is that otherwise they would not be allowed to do what they are allowed to do, which is accept tax-exempt donations.
In summation, I'll say that there are other analogous circumstances, such as in the Civil Marriage Act, where there are enumerated protections for conscience rights. We say it would be a mistake not to codify the same in this legislation.
Thank you.