By Albertos Polizogopoulos and Faye Sonier
Now that assisted suicide and euthanasia have been decriminalized in Canada, news articles and opinion pieces are spreading incorrect information about the legal obligations and rights of the parties affected by this change in law. While the authors of these pieces are likely well intentioned and simply unaware that the information shared is misleading or wrong, it is vital that we set the record straight each time this occurs.
An example of this is the recent Globe and Mail piece, “Hospitals have no right to opt out of assisted dying.” Reporter Andre Picard states that faith-based hospitals have no right to opt-out of providing assistance in suicide. The support for this conclusion is his assertion that “Institutions do not have a conscience. Institutions do not have rights.” He also asserts that in Carter v. Canada , the Supreme Court of Canada concluded that individuals have a right to physician-assisted suicide. Neither of these assertions is accurate.
First, the Supreme Court of Canada did not conclude that Canadians have a legal right to physicians-assisted suicide. What the Supreme Court concluded was that the Criminal Code prohibition on assisted-suicide violated the Charter right to life of certain individuals. You read that correctly—a prohibition on killing violates the right to life, but that’s an entire different piece to write.
Specifically, the Court found that “the prohibition on physician-assisted dying had the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.” The Court’s conclusion was, in large part, based on the fact that in the 1970s, Parliament decriminalized attempted suicide because it realized that individuals who had attempted to take their own life needed psychological counselling, not jail.
Because suicide was not a crime, the Court viewed it as a legal option for individuals and because certain people with debilitating conditions, like Kay Carter, would not have the physical ability to take their own lives when their condition worsened, they would take their life earlier. To some, this distinction may not sound important, but in law, it’s a crucial distinction.
Second, institutions do have consciences. Their consciences are their founders, sponsors, and directors, which are bound by their corporate documents. In the case of faith-based healthcare institutions, the constituting documents generally set out their mission, which is often based in their religious identity.
Catholic hospitals, for example, were founded by and are operated by Sponsors. For a hospital to be considered “Catholic,” Canon Law requires that it be sponsored by an authorized Catholic organization. These Sponsors are organizations authorized by a Bishop, a Conference of Bishops, or the Holy See. In all circumstances, the Sponsor requires the Diocesan Bishop to confirm his willingness and support of the project. In short, the Catholic hospital is under the authority of the local Bishop and is engaging in works in the name of Christ on behalf of the Roman Catholic Church.
That is where a Catholic hospital’s conscience is found, but the rationale is similar for all faith-based hospitals—their identity as a faith-based organization determines their conscience.
Third, institutions do have rights. Picard criticizes Ontario’s recent legislation providing protection for faith-based hospitals. He states that the recognition of these rights are “preposterous.” But it isn’t preposterous; it’s the law. Does Picard suggest that a trade union does not benefit from freedom of association? Does a news organization like the Globe and Mail not have freedom of expression and freedom of the press? Does a university not have property rights?
Even if Picard’s unfounded and unsupported legal conclusion that the Supreme Court found there was a right to assisted suicide were correct — and again, there is no such right — should the burden of ensuring people’s access to this service fall on private faith-based hospitals? Or should it fall on the government? In Canadian law, that burden would fall on the government. The Charter of Rights exists to bind the government and protect private individuals and organizations. Assisted-suicide doesn’t change that.
Albertos Polizogopoulos is a constitutional lawyer who represented the interests of faith-based institutions before the Supreme Court of Canada in Carter v. Canada. Faye Sonier is Executive Director and General Legal Counsel for Canadian Physicians for Life.