National Affairs Rory Leishman

National Affairs Rory Leishman

On Jan. 31, the Ontario Divisional Court held in The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, that pro-life physicians have no constitutional right to refuse to collaborate in killing or assisting in the death of a suicidal patient upon request. Who bears primary responsibility for this appalling decision?

In this case, as in so many others, the prime culprit is the Supreme Court of Canada. The right in conscience of pro-life physicians to refuse to collaborate in the deliberate killing of a patient would not have come before the Ontario Divisional Court had it not been for the outrageous, prior decision by the Supreme Court of Canada in Carter (2015), which arbitrarily decreed that the longstanding bans on murder and assisted suicide in the Criminal Code no longer apply to physicians who assist in killing a grievously ill patient who clearly wants to die and is afflicted with chronic and unendurable suffering.

This ruling in Carter was entirely arbitrary. It had no basis in law or the Constitution as originally understood. It was a brazen exercise of raw judicial power that unilaterally legalized euthanasia and assisted suicide in open defiance of the repeatedly expressed will of Parliament.

In response to such a blatant usurpation of legislative authority by the Supreme Court of Canada, Parliament could have invoked the notwithstanding clause of the Constitution to override the Carter ruling and reinstate the hitherto universally applicable laws on homicide and suicide in the Criminal Code. Instead, as usual, the government and Parliament of Canada capitulated: In accordance with the direction of the court, the Liberal government of Prime Minister Justin Trudeau promptly introduced and Parliament duly enacted legislation on medical assistance in dying (MAID)  –  a Liberal euphemism for euthanasia and assisted suicide.

Such is the sorry state of democracy in Canada.

Meanwhile, the College of Physician and Surgeons of Ontario (CPSO) compounded the Carter outrage, by promulgating a new rule of professional practice that obligates pro-life physicians to refer their suicidal patients who qualify for MAID to a death-dealing colleague. In submissions to the Ontario Divisional Court, the Liberal government of Ontario Premier Kathleen Wynne made clear that it fully backs this gross violation of the conscience rights of pro-life physicians by the province’s regulatory authority for physicians.

As for the Ontario Divisional Court, it conceded in its ruling that the new CPSO rule on euthanasia clearly violates the right of pro-life physicians to “freedom of conscience and religion” as supposedly guaranteed in section 2 of the Canadian Charter of Rights and Freedoms. Nonetheless, the Court maintained that this infringement is justifiable under section 1 of the Charter as a necessary means of assuring ready access to MAID by suicidal patients.

The court advanced no reasonable basis for this conclusion. In a policy paper issued in January 2016, the Canadian Medical Association (CMA) repudiated as “fundamentally erroneous” the same contention by the CPSO that mandatory referral for MAID is necessary to assure patient autonomy. “As many have argued,” the CMA pointed out, “it is entirely possible not to compromise or limit patient access on any level without compromising the exercise of conscience (by pro-life physicians).”

As evidence, the CMA observed that outside Canada, “no jurisdiction has a requirement for mandatory effective referral, and yet patient access does not seem to be a concern.” Even in the Netherlands, pro-life physicians are under no legal obligation to refer their suicidal patients to a physician or clinic that might be willing to kill them. Yet it would be absurd to suggest that suicidal Dutch patients lack sufficient access to euthanasia.

Meanwhile, in Manitoba, the Legislative Assembly has, to its immense credit, enacted the Medical Assistance in Dying (Protection for Health Professionals and Others) Act. In plain words, this Act assures: 1: “A medical practitioner or nurse practitioner may refuse to provide medical assistance in dying on the basis of his or her personal convictions” and that 2: “For greater certainty, a professional regulatory body (such as the College of Physicians and Surgeons of Manitoba) must not make a regulation, by-law, rule or standard that requires a member of the regulated profession to provide or aid in the provision of medical assistance in dying.”

All provinces should enact similar legislation, which has been called the gold standard in conscience protection by Campaign Life Coalition. But in the aftermath of the precedent set by the Ontario Divisional Court, will our judicial masters on the Supreme Court of Canada simply strike down any law that reaffirms the historic right of pro-life physicians to freedom of conscience and religion?

That, alas, is all too likely.