The Call in Carter to Interpret Freedom of Conscience
Brian Bird, "The Call in Carter to Interpret Freedom of Conscience" (2018) 85:2 Supreme Court Law Review 107-141
36 Pages Posted: 14 Mar 2019
Date Written: June 1, 2018
In Carter v. Canada (Attorney General) (2015), the Supreme Court of Canada signalled that decriminalizing physician-assisted death would prompt a need to reconcile the freedom of conscience of physicians who do not want to participate in the procedure with the right of eligible patients to receive it. This process of reconciliation is underway in Canada. The outcome of that process in provinces such as Ontario is an effective referral: physicians may conscientiously refuse to perform physician-assisted death, but they must personally find and refer a patient to a willing physician.
This process of reconciliation is unlikely to succeed if we fail to grasp what freedom of conscience protects and why we include it in a bill of rights such as the Charter. To date, there has been little jurisprudence and scholarship in Canada on freedom of conscience. Section 2(a) of the Charter protects two distinct interests: conscience and religion. Religious freedom has enjoyed extensive legal attention since the Charter arrived. Freedom of conscience has been forgotten.
In answer to the “what” question, freedom of conscience protects the freedom of individuals to live in alignment with their moral convictions, regardless of whether those convictions stem from religious or non-religious sources. When persons violate these convictions, they commit a harmful act of self-betrayal. As for the “why” question, freedom of conscience is included in the Charter – in all major bills of rights for that matter – because living in alignment with our moral convictions sustains our integrity and identity. These values engage human dignity.
Taken together, the what and why of freedom of conscience suggest that this Charter freedom should not be limited lightly. With respect to ensuring access to physician-assisted death, courts should therefore strictly scrutinize whether the means that the state or state actor has chosen to ensure that access causes the least amount of harm to freedom of conscience. The presence of means that better maximize both interests, like the care coordination service in Alberta, suggests that effective referrals miss the mark on the reconciliation that Carter calls for.
Keywords: Charter of Rights and Freedoms; constitutional law; freedom of conscience; freedom of religion; healthcare; conscientious objection
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