A new peer-reviewed book, Medical Assistance in Dying (MAID) in Canada: Key Multidisciplinary Perspectives has just been released. The book, published by Springer Academic and edited by Jaro Kotalik and David W. Shannon, features 31 chapters by experts from multiple disciplines, to offer a “comprehensive discussion of the Canadian Medical Assistance in Dying (MAID) program.”

Deina Warren, Director of Legal Affairs at CCCC and Derek Ross, Executive Director and General Counsel for Christian Legal Fellowship, contributed a chapter on “The Importance of Conscience as an Independent Protection.”

Their article emphasizes how freedom of conscience needs greater attention, particularly in the context of MAID expansion and the debate about whether and to what extent physicians should participate in MAID.

Freedom of Conscience is Distinct from Freedom of Religion

To date, courts have primarily focused on the role of freedom of religion in resolving such questions, but the Canadian Charter of Rights and Freedoms also guarantees freedom of conscience. This is important because, as Deina and Derek explain:

MAID—the act of intentionally ending another person’s life via the administration or provision of a lethal substance—engages human rights considerations, as well as health, medical, clinical, social, and cultural factors. All of these considerations are relevant for professional ethics (and, therefore, professional conscience), yet they are largely absent from the current [freedom of religion] framework, which focuses on religious matters, such as one’s “system of faith and worship” and practices “which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith”. Thus, a more specific, extensive, and discrete analysis of conscience is merited… [references omitted]

Deina and Derek make the case that freedom of conscience should be interpreted generously and as “an independent right with independent content” – principles of Charter interpretation require no less. Their article proposes “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.”

You can read more about their chapter here.

Euthanasia Expansion

Euthanasia in Canada has undergone a massive shift since the Carter decision in 2015. What was once a criminal act for “inflicting death” on another person became a legalized process: first to hasten a “reasonably foreseeable” death, then to purposefully end the life of a person who was not dying but who determined their suffering was intolerable, and, as of next year, to include those whose sole underlying condition is a mental illness. In addition, a Parliamentary committee has proposed expanding MAID eligibility to children. In the meantime, health care facilities are facing growing pressure to either provide MAID on-site or risk being shut down (see discussion in Brian Bird and Derek Ross, Faith-based health care offers vital access to medical assistance in living).

In this landslide of change, it is important to ensure that conscience protection is not washed away. As Deina and Derek note in their article:

[L]egal, medical, and ethical views vary widely on these subjects. Therefore, not only will conscientious concerns about participating in these procedures become more complex, the diversity of viewpoints and positions will also likely increase. Perhaps a place where theses varied views can meet is in the concept of conscience, the basis for our shared “essential humanity”. … In the case of the most basic of human instincts—to not end another person’s life— it is essential to guard against eliminating cognitive dissonance on the ethics of these matters. These are, after all, questions of life and death. If freedom of conscience has no role to play here, where does it? [references omitted]

Enriching the Discussion

The collection also features articles on the Supreme Court of Canada’s decision in Carter v Canada, the expansion of assisted death in Canada, and its implications for palliative care, suicide prevention, mental illness, disability rights, and freedom of conscience, among other topics. You can read more about these chapters here.

Thoughtful consideration and protection of conscience, among other things in the MAID debates, is more important than ever. This collection of articles is an important contribution to that conversation.

Related CCCC Blogs

Parliamentary Committee Recommends MAID Expansion; Expert Witnesses Respond with Concern and Criticism (12 April 2023)

Bill C-7, An Act to amend the Criminal Code (medical assistance in dying) (12 February 2021)

Related CLF Blogs/Resources

Parliamentary Committee recommends expanding assisted death (22 Feb 2023)

World Medical Association updates ethical code upholding conscience + reaffirms opposition to euthanasia (2 Dec 2022)

Advocating for palliative care (1 Nov 2022)

CLF brief to the Special Joint Committee on Medical Assistance in Dying (31 May 2022)

Ontario Court of Appeal upholds ‘effective referral’ requirement for euthanasia (15 May 2019)

The post Hot off the Press! A Brand New Book on MAID in Canada appeared first on CCCC Blogs.

We’re excited to do something a little bit different in this blog post. Today we’re talking to Dr. Barry W. Bussey about freedom of religion and conscience. These two matters have been some of the most important to Barry throughout his legal career, including during his 10-year tenure at CCCC, which he completed in November 2021. We wanted to hear his thoughts and reflections about them as he leaves CCCC.  

Many of our readers will know Barry well. But for those who don’t, Barry hails from Newfoundland, and among many other things, has served as a pastor, worked as a lawyer in private practice, ran for political office, directed public affairs for a church denomination, worked in Washington, D.C. representing the International Religious Liberty Association, and served as CCCC Director of Legal Affairs. In 2019 Barry earned his Ph.D. in law from Leiden University. He has co-edited or edited four books on law and religion and has published a growing number of law review articles.

Our Interview

Deina: Looking at your work over the course of your 10 years at CCCC your focus on religious freedom is very clear. And it seems there are two key elements of religious freedom that have captured your attention: religion as a “prototypical freedom” and the relationship between freedom of religion and freedom of conscience.

Can you explain what you mean by religion as a “prototypical freedom”?

Barry: Religious freedom is foundational: it sets the stage for the other freedoms we enjoy in liberal democracies, like freedom of speech, freedom of assembly, or freedom of association. Looking back specifically to the religious wars of the sixteenth and seventeenth centuries, we see they ultimately led to the realization that belief could not be forced or compelled without bloody consequences. This, in turn, contributed to a political toleration which recognized that the state is not supreme; individual conscience or faith had to be accommodated for the greater good. In this sense, freedom of religion “blazed the path” that led to the development of other human rights. Logically, this also means that if we neglect freedom of religion and conscience, we undermine all other civil liberties.

“…conscience represents an even deeper, inner principle which is accessible to all, regardless of their faith or lack of faith.”

Deina: Speaking of other civil liberties, can you tell us how freedom of religion and conscience interact? And why that matters? What difference does it make?

Barry: The two concepts are often used interchangeably, but in my view, conscience underlies religion, in the sense that conscience represents an even deeper, inner principle which is accessible to all, regardless of their faith or lack of faith. It is, at its heart, the individual’s understanding of the truth and his responsibility to that truth. I would say that, while not all conscience claims may be religious in nature, any appeal to religious freedom must be grounded upon freedom of conscience. This is because religion may be seen as a public or communal manifestation of private, conscientious convictions regarding morality and one’s individual obligation to God.

Deina: What is it about these two topics – religious freedom and conscience – that have attracted your attention?

Barry: From an early age growing up in Newfoundland I was aware of the differences of religion. I lived in an area that was overwhelmingly Anglican, as was my family. But occasionally an ‘outlier’ from the Pentecostal, Catholic, or Salvation Army communities would enter my world. This happened when I went to school and saw that not everyone shared my faith. That fascinated me and still does. Why so many different beliefs or doctrines? Then later, my own family changed denominations and suddenly I was among the ‘outliers.’ Again, it was a time for evaluation – what motivates people to stand out and be different?

“Would I be so committed to my faith, my integrity that I would lay all things down to remain true?”

Later I became interested in conscientious objectors during war. I went on a research project interviewing some twenty-five to thirty men who refused to bear arms during World War II. I tried to live in their world at the time as they shared with me their experiences. These experiences included being ostracized from family and friends, loss of employment (no one wanted a “coward” in their employ), being put in public work camps around Canada at one-half the pay given to the regular conscripts. Some described their fellow conscientious objectors having nervous breakdowns out of anxiety for their spouses and children, who were left on the farm to fend for themselves. Yet, despite it all, they had no regrets that they had followed their consciences. Hearing their stories made an impact on me. Would I be so committed to my faith, my integrity that I would lay all things down to remain true? Serious questions. They remain relevant today.

Deina: What do you see as the most significant challenge to these freedoms?

Barry: In the last ten years we have seen the culmination of various trends which began after the last World War and which are having a dramatic impact on conscience. Most people seem to be unaware of the gigantic legal revolution against the accommodation of religion. It is, in my view, the settled opinion of most academics, the media, political elites and, unfortunately, the legal profession and judiciary that conscience and religion are no longer worthy of accommodation. That is a sea change from what we once understood in constitutional liberal democracies. We once held the view that we are to accommodate religious and conscientious belief and practices, as I mentioned earlier. We were willing to be inconvenienced to allow a person to maintain their integrity. That is now gone.

Deina: Why do you think that is?

Barry: I think it is due to a very cynical conception of the world as a matter of power. He who has the power gets to run his own show. We have lost the concepts of virtue. The cardinal virtues, the Greeks told us, were prudence, justice, fortitude and temperance. The Christian church said, ‘yes, those are good, but we also need faith, hope and love.’

Immanuel Kant, the German philosopher, said, “Virtue is the moral strength of the will in obeying the dictates of duty.” Historically, we had a cultural understanding of our duty to our God, to our family, and to our community. The Greeks told us that we simply cannot perform a function or a skill (the “techne”) without knowing the purpose (“telos”) of why we are doing it. We have lost that second part of knowing the purpose. We are only interested in the function: getting things done, satisfying the senses, without considering the bigger meaning of things – in part, I suspect, because doing so means recognizing not only a higher purpose but a Higher Power.

The culmination of this process in the legal profession came with the TWU law school cases. It was totally disheartening to see my own legal profession be so oblivious of their own history that they could not see the “telos” in that debate. There was no understanding of TWU’s duty to the moral virtues for which it was created in the first place. They could only see the function of a law school (educating lawyers) and not the purpose of producing virtuous lawyers who understood and carried out their duty. Conscience, religion, duty, all was rejected in the pursuit of power. Power is now the currency within which we operate, and quite frankly we see it more and more everyday.

“It will be important to establish a respectful and informed framework to ensure we’re not having conversations about power, but about purpose.”

Deina: Looking at some of those reasons, what do you think should be done in response?

Barry: There are a number of things that I think should be done to effectively respond to these underlying issues. One is to advocate, educate, and potentially litigate as necessary in order to defend the equal dignity and worth of all Canadians. That could include academic work, like my own past book projects (The Inherence of Human Dignity (2021), The Status of Religion and the Public Benefit in Charity Law (2020), Religion, Liberty and the Jurisdictional Limits of Law (2017)), editorials and other columns, seminars; developing and sharing resources to equip Canadians to understand and protect their rights and freedoms and to engage in meaningful conversations with political leaders. It will be important to establish a respectful and informed framework to ensure we’re not having conversations about power, but about purpose.

Deina: Thanks, Barry, for taking the time to talk with us today! We appreciate your insight into the interplay between religion and conscience, and for the very important reminder to always keep the end in mind; of knowing the purpose that underlies the function.

Ways to Engage

Wondering how you can engage in some of the issues raised by Barry? Check out our recent blog post, Advocating for Legal/Policy Changes, that sets out a framework to help you engage wisely.

The post Freedom of Religion & Conscience: What’s the Connection? appeared first on CCCC Blogs.

The federal government is asking for your feedback about expanding access to “medical assistance in dying” (MAID), a euphemism for euthanasia or assisted suicide. Whichever term you choose, we are talking about the intentional killing of human beings, a matter of serious concern for the Christian.

Why now? What has prompted the online questionnaire? According to the website there are two main drivers: first, the Truchon v Attorney General of Canada[1]decision from September 2019; and second, the upcoming MAID review this summer.

In Truchon the Quebec Superior Court heard a constitutional challenge to the requirement that death be reasonably foreseeable to be eligible for MAID. That is only one of several criteria a patient must meet in order to be eligible. Currently, the patient must:

• Be at least 18 years old
• Have a grievous and irremediable medical condition (further defined as summarized below)
• Have made a voluntary request
• Give informed consent, even after being told about alternative options, including palliative care

It is the further definition of a “grievous and irremediable” condition that requires reasonable foreseeability of death. In addition, the patient must:

• Have a serious and incurable illness, disease or disability
• Be in an advanced state of irreversible decline in capability
• Experience, as a result of the illness, disease or disability, enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions he or she deems acceptable

The court declared reasonable foreseeability of death an unconstitutional requirement.

Although the court claimed to “fully understand” warnings about the danger related to social normalization of MAID and the societal perception of the value of people with physical or intellectual disabilities, it  concluded that “we cannot, in the name of protecting certain persons from themselves or of socially affirming the value of life, deny medical assistance in dying” to entire groups of people.[2]

The court also held that the negative effects of requiring reasonable foreseeability of death were “by far greater than the expected benefits to society as a whole” if a foreseeable death was not required. That requirement was held to violate the Charter, principles of self-determination, dignity and autonomy. To hold otherwise would be “forcing” people to “continue a life that no longer has any meaning.”[3]

I pause here to note that even as the Quebec court held that “forcing” people to live offends the Charter, an Ontario court last year held that forcing physicians to participate by referring patients for MAID does not offend the Charter.[4] This is a dangerous convergence: expanding state-authorized euthanasia while at the same time restricting conscientious objection.

Instead of appealing the decision (which it could have done), the federal government chose to let the decision stand. The ruling, and the elimination of reasonable foreseeability, will come into effect on March 11, 2020. As noted on the questionnaire website, “while this ruling only applies in the province of Quebec, the Government of Canada has accepted the ruling and has committed to changing the MAID law for the whole country.”

In what I think is a key phrase about the context and objectives of the questionnaire, the site explains: “updating Canada’s MAID law will expand eligibility for MAID beyond people who are nearing the end of life, and could possibly result in other changes.”

So, while this consultation is important, the government clearly made its decision about expanding MAID when it refused to appeal the Truchon decision. Now it is not a matter of whether eligibility will be expanded, but how far and what “safeguards” will be implemented.

Those questions will be essential for the MAID review this summer. The review is a requirement of the 2016 changes to the Criminal Code that created an exemption for MAID, as described above. It is important to observe that with this single legislative change, what was a criminal offence was transformed into a legal act; proponents would go further and say that MAID is not only legal, but moral, ethical, and good.

In terms of the review, the 2016 amendments directed one or more independent reviews to consider MAID requests for:

• Mature minors – children who are considered mature enough to consent to their own medical treatment
• Advance requests – where at the time of death the patient would not have the capacity to consent
• Mental illness – where mental illness is the sole underlying medical condition

The Canadian Council of Academies has already completed a review of these topics and released three final reports in December 2018. Each of these justify a lengthy discussion on their own, but that will have to await a future post.

As one of my CCCC’s colleagues observed, it is heartbreaking to see courts reflect and affirm the notion that life is meaningless for people with disability or illness; that suffering is meaningless; that suffering is to be avoided at all costs even if it undermines the inherent worth of each human being. It is also heartbreaking to see that we are quickly moving so quickly to expand MAID.

Dr. Kerry Bowman, a Clinical Ethicist at Mount Sinai Hospital who is generally supportive of MAID, recently expressed concern in a media interview that, “the day will come when we’ll see a person in a wheelchair, with whatever disability, and rather than think, ‘Can I be of any help to them?’ we’re going to think, ‘Why would they do that to other people and to society? Why wouldn’t that person move on?’”

As Christians we know that our worth is not contingent on utilitarian measures of what we can contribute, how our physical bodies function, our degree of happiness, or any other human metric we may develop. It is based on the fact that we are created in the image of God. We also recognize that Christ suffered for us; it is by his wounds we are healed. Our nation needs a message of healing and hope more than ever. Make your voice heard – complete the questionnaire and take the opportunity to provide important feedback about the value of life and the concerns you have.

The MAID questionnaire is open until Monday, January 27, 2020 at 11:59 p.m. (PST).

If you’re looking for more, here are a few additional resources to inform you on the issue of MAID, its expansion, conscience rights, and how you can engage on this issue beyond the questionnaire:

Barry Bussey, “The Right of Religious Hospitals to Refuse Physician-Assisted Suicide” (2018) 85 SCLR (2d)

Derek Ross and Deina Warren, “Religious Equality: Restoring Section 15’s Hollowed Ground” (2019) 91 SCLR (2d)

Barry Bussey, “Getting Serious About Conscience Rights”

Christian Legal Fellowship, Background Paper “Euthanasia and Physician-Assisted Suicide in the Case of Mature Minors, Advance Requests, and Mental Illness: Legal, Ethical, Cultural, and Clinical Considerations” (6 October 2017)

Christian Legal Fellowship, Submission to the Canadian Council of Academies on Medical Assistance in Dying in Canada (6 October 2017)

Evangelical Fellowship of Canada, Submission to the Canadian Council of Academies on Medical Assistance in Dying in Canada (3 October 2017)

Evangelical Fellowship of Canada, Briefing Notes on Euthanasia and Assisted Suicide (April 2016)

Evangelical Fellowship of Canada, sample letter to the Minister of Justice

[1] 2019 QCCS 3792

[2] Ibid, at paras 304-310

[3] Ibid, at paras 625-638

[4] For more on the CMDS v CPSO decision, see my Horizons column CCCC Bulletin (2019:3)

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You will remember that just before Christmas the federal government announced that it will no longer grant Canada Summer Jobs (CSJ) funding to employers unless they attest that they are in favour of government ideology on social policy. The attestation says:

both the job and my organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights. These include reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression.

Many Christian charities have decided that they cannot attest to this statement as it is worded for a number of reasons. First, it is vaguely written, being open to a number of interpretations; second, it appears to suggest that charities are responsible for applying the Charter in their workplace as if they were government actors, which they are not; third, it introduces a new values test for government support. No one should ever have to agree with government opinions in order to access government programming.

Not only religious groups have voiced their opposition; many across the political and social spectrum also recognize the problem. As Paula Simons, of the Edmonton Journal noted on January 17, 2018:

“I’m a pro-choice feminist. But I find myself deeply disturbed by a new federal rule that says any small business or not-for-profit group applying for a Canada Summer Jobs grant must first “attest” to their support for legal access to abortion. Where does that leave groups like Catholic Social Services or the Mennonite Centre for Newcomers or other faith-based social service agencies that do vital work in our communities? And where does that leave respect for the Charter itself? I support a woman’s right to control her body. But I also support freedom of conscience, of religion, of thought.”

The government sought to alleviate opposition by issuing “Supplementary Information”. However, this did not satisfy the criticism because their definitions only created further confusion while keeping the attestation in place.

The motion before the House of Commons today, which will be voted on March 19, states as follows:

That, in the opinion of the House, organizations that engage in non-political non-activist work, such as feeding the homeless, helping refugees, and giving kids an opportunity to go to camp, should be able to access Canada Summer Jobs funding regardless of their private convictions and regardless of whether or not they choose to sign the application attestation.

During today’s debate the government continued to insist that they are not seeking compliance with beliefs, but rather activities. They argue they are concerned with the actions of those organizations such as the Canadian Centre for Bio-ethical Reform that display pictures of aborted fetuses and distribute anti-abortion literature door-to-door.

The government fails to recognize that regardless of how the government has reinterpreted the attestation, religious communities still maintain that they cannot and will not “check the box.” They cannot separate their beliefs from their activities. In essence, the government is saying, “Trust us and tick the box. We will not discriminate against you if you are not doing what the CCBR are doing.” That is precisely the problem. The failure to remove the attestation has meant a loss of trust for many who oppose.

Michael Cooper pointed out that while the Prime Minister talks “diversity, inclusivity, tolerance — actions speak louder than words. Actions are different than their words. They have no regard for fundamental freedoms.” He called on the government to “Do the right thing and withdraw this bigoted test.”

Ted Falk pointed out that “Political leaders need to make peace with diversity.” That includes the religious community which may not have the same view as the government.

Mona Fortier countered that, from the government’s perspective, “Taxpayer’s money should not be used by organizations that would undermine rights of women to make their own choices.” She noted “We extended the deadline by one week. Under represented young people — indigenous, immigrants, minority languages, LGBTQ2 — all have the right to be included.”

Similarly, Brian May claimed “There is a lot of misinformation on the CSJ, but there are strong supporters of the attestation.” He explained, “CSJ requires the job and organization respect the Charter of Rights and Freedoms. Our duty is to preserve our values and values underlying the Charter.”

Identifying the central issue at stake, Harold Albrecht argued, “No one has the right to prevent others to practice their beliefs, especially the government. Think about the loss to our community because groups could not sign the attestation.”

Kevin Sorenson asked, “With all due respect, what’s next? Now it is about #CanadaSummerJobs. If we do not line up with the government, what’s next?”

That line of questioning was taken up by Lisa Raitt who suggested what could be next. She noted that the CRA’s application for registered charitable status is quite extensive. A charity’s application to be registered already entails screening of purposes and activities to ensure that they are not contrary to Canadian public policy. She then queried if the CRA already does such a review, why this attestation? In her view, the attestation requirement is about changing the Canadian public policy so that eventually the government will force registered charities go through a similar test.

When I posted Raitt’s comments on my Twitter account I was interested to see that one pro-choice advocate confirmed that, indeed, Raitt is on the right track.

They also provided a link to the Abortion Rights Coalition of Canada’s policy paper wherein they call for the removal of registered charitable status of charities that do not support abortion.  As the paper points out:

Almost all anti-abortion groups are religiously-based and motivated, because the anti-choice viewpoint is fundamentally a religious doctrine. Some counselling groups proselytize openly (often to unsuspecting and vulnerable clients), even though they obtained their charitable status on claims of being “educational” or engaged in “research” or “family/crisis counselling.” In fact, most Canadian anti-abortion counselling centres with charitable status are explicitly Christian.

Given the fact that the federal government is highly attuned to the demands of the pro-abortion community, this latest call for the removal of registered charitable status for religious communities that have an “anti-abortion” position has got to be taken seriously. This forms part of the reasoning which compels CCCC and other religious groups to push back against the CSJ attestation requirement. In short, the attestation is but the thin edge of the wedge.

On March 19 the House of Commons will continue this debate and a vote will be called. In the meantime, there is much work to be done. You can contact your local Member of Parliament requesting that he or she vote in favor of this motion, because through this motion the country has an opportunity to let its voice be heard. The result will directly impact the lives of students and public benefit programs that charities, non-profits and small businesses have been unable to carry out thanks to the attestation requirement. To find out who your Member of Parliament is and how to contact them go to http://www.ourcommons.ca/parliamentarians/en/constituencies/FindMP

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