Honourable members and honourable Senators, thank you very much for the invitation to be here today.
I'll preface my comments this morning with two thoughts. The first is that I'm aware of the difficult decisions that have to be made by patients and families in palliative situations. I lost my mom seven weeks ago. We cared for her at the house, so I'm very aware, and I'm not taking a moral position with respect to physician-assisted dying or suicide.
My second thought is that despite the fact that the Criminal Code provisions against physician-assisted suicide, paragraph 241(b) and section 14 of the Criminal Code, have been struck down, the history of the medical profession remains, and it is deeply entrenched in the minds and the hearts of many physicians across the country. While the Hippocratic oath, for example, is millennia old and remains in use in various variations across North America today, it has been discarded in some jurisdictions. However, the Hippocratic oath remains in use, and it specifically prohibits giving a patient poison or counselling another person to do so. There are strong conscientious and religious objections that are held by many physicians across the country, and erasing two sections of the Criminal Code does not erase the way they feel about it and what they believe about it.
The Justice Centre for Constitutional Freedoms is an organization devoted to upholding the constitutional rights of Canadians, and increasingly these days the constitutional rights of minorities are threatened. That's typically where our case law lies.
We have five recommendations with respect to pending legislation. They are as follows.
We submit that the new federal legislation should provide explicitly that physicians, nurses, pharmacists, and other health care workers, as well as health care organizations and institutions, can refuse to participate in and refuse to refer for physician-assisted suicide.
The Supreme Court of Canada decision in Carter in no way compels doctors or other health care workers to cooperate unwillingly in a physician-assisted suicide scenario. Carter was predicated on two key factual conditions: a willing patient and a willing doctor. None of the scenarios before the court in Carter involved an unwilling doctor. The existence of a right of patients to require every physician to refer for every medical service is a misconception that some of the provincial colleges of physicians, as well as the Canadian Medical Association, appear to be labouring under. Many doctors and other health care workers object to assisted suicide on ethical, moral, or conscience grounds, or on historical grounds with respect to their profession, which does not negate the fact that their objection is one of conscience. The Supreme Court of Canada in R. v. Big M Drug Mart Ltd. made these comments:
Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free.... Coercion includes...indirect forms of control which determine or limit alternative courses of conduct available to others.
Our second recommendation is that Parliament should enact legislative protections for medical practitioners substantially similar to those contained in the Civil Marriage Act. In the Civil Marriage Act, specific protections were enacted for individuals and organizations that have a religious or a moral belief that marriage is between a man and a woman to the exclusion of all others. No citizen, because of the Civil Marriage Act, can be sanctioned for expressing or propagating or advocating for the belief that marriage is between a man and a woman. The legislation specifically states that it is not against the public interest to hold or advocate these beliefs, and we submit that this is an analogous situation. There is a jurisdictional overlap between the federal government and the provincial governments, and it brings this issue into line with the Civil Marriage Act situation.
Our third recommendation is that the new federal legislation should mandate that the application process for physician-assisted suicide should continue to be made on a permanent basis to a superior court justice. Currently applications are made to a superior court justice on an interim basis; we say that this should be permanently codified.
There are a number of good reasons to do so, in our respectful submission.
First of all, judges are schooled in the law and the Constitution. Disagreements with respect to legislative overlap and overreach can be reconciled best by a judge, who has been trained to deal with constitutional issues. Second, the courts have already said that they trust a justice to handle this weighty decision. Third, justices are capable of giving justice on a timely basis, as emergent applications to courts are regularly made, and they are regularly available in provincial jurisdictions. Fourth, the superior court justices are better equipped to handle the issues that potentially arise in a case of physician-assisted suicide. For example, there are issues of duress. There may be hostilities among family members over which course of treatment to take. Justices are used to dealing with these hostilities. In our respectful submission, it's not fair to put these responsibilities on the shoulders of a physician. Additionally, justices cannot be sued for malpractice, and they do not have malpractice insurance. We suggest that this may be an issue for physicians who make the decision to terminate somebody's life.
Our fourth recommendation is that the federal legislation should mandate a parliamentary review board to review, every three to five years, the physician-assisted suicides that have occurred and to make recommendations for legislative amendments.
I know there have been proposals that a national review body should be established and that it would be better than having a parliamentary review board. In my respectful submission, that is not the best course of action for a number of reasons. First, the enforcement of data collection and reporting would potentially be difficult for a national review board to handle, as there is no authority over the provinces. It would be difficult to bestow a national body with such powers. A parliamentary review board is already capable of doing what a national review board would be capable of doing. In addition, the national board would not be composed of individuals who are responsible to the electorate. This, of course, is not the case with Parliament. In our submission, this adds an additional level of accountability that is a requirement for issues of life and death.
Our fifth and final submission is that Parliament should note that constitutional infringements are already occurring, or are already suggested to occur, in the guidelines that are being released by the colleges of physicians across the provinces. It would be worth noting that the Canadian Medical Association has essentially said there should be a requirement to refer. It does not consider the referral for physician-assisted suicide as assisting in physician-assisted suicide. Additionally, it seeks to qualify the rights of physicians with respect to a delay component or a time component.
In our respectful submission, there needs to be a careful balancing of the rights of physicians versus those of patients, because the non-autonomous nature of a patient who requires the assistance of a physician calls into question the rights of the assistor.
Thank you so much for hearing me today.