Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 18 - Evidence
OTTAWA, Thursday, February 26, 1997
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-7, to amend the Criminal Code to prohibit coercion in medical procedures that offend a person's religion or belief that human life is inviolable, met this day at 10:52 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Before us this morning is the Honourable Senator Stanley Haidasz, P.C., the sponsor of the bill. Please proceed.
Hon. Stanley Haidasz: It is an honour and a privilege to appear this morning in your study of Bill S-7, a bill that I proposed in the Senate a few weeks ago to bring in some form of defence of the conscience of health care workers and seek your learned advice and any remarks that you have on this bill.
I am deeply connected with this bill, as a physician who has worked with my fellow physicians in hospitals. I also have a great concern for the problems that nurses and other health care workers have experienced and still experience today with regard to their religion and conscience, especially as their work entails certain procedures in medicine or surgery which their conscience or their religion forbids them to carry out.
I should like to preface my remarks today with two letters that were just passed to me this morning from Mr. Marwick from Vancouver, who is also the director of a volunteer association in Vancouver called the Catholic Civil Rights League.
My notes are before you, but I should like to preface those notes by reading a few paragraphs from those two letters. I think they are very pertinent to the subject we are studying this morning. The first one is a letter that Bishop Henry, the Bishop of Thunder Bay, wrote to the editor of the editorial page of The Chronicle-Journal of Thunder Bay. I should like to read, first, three paragraphs of that letter, which are as follows:
When I made my first inquiry into whether Catholic and non-Catholic nurses transferring from St. Joseph's Hospital due to hospital restructuring were being forced to participate in abortions, I was informed by a senior board member and an administrator that it really isn't a problem as it only involves one nurse. That response, probably proffered as an attempt at damage control, turned out to be totally false. Since that time other nurses have acknowledged the same force or compulsion and have sought the help and assistance of their parish priests.
Given the current down-sizing of staff in our local health care delivery system, some nurses are afraid to speak out or make their disapproval known as they fear for their jobs. My own attempts, beginning on May 23, to intervene quietly with hospital officials in order to find a solution to this current dilemma have met with little success. Hospital officials continue to stonewall and stall, to deny, and reminiscent of Pilate, wash their hands of any institutional responsibility.
One administrator is quoted as saying that if nurses do not wish to participate in abortions, they have the option of switching shifts if they can find someone to take over their shift.
Emphasis was added to this sentence. The letter goes on to state:
The hidden assumption here seems to be that abortion is such a popular job that nurses line up waiting for a chance to participate. The truth of the matter is that even the veteran nurses at the TB Regional are not totally at ease with their role but the administration doesn't want to acknowledge or face this reality either.
Later, Bishop Henry states:
One can only speculate as to why our local policy makers have not chosen to take the high road and copy such a sensitive and balanced approach. When the deficiencies in the current Human Resources Plan are pointed out to them, why are they so intransigent? Don't they care about the moral principles and religious beliefs of their employees? Are they anti-Catholic?
Based on the public statements reported in this newspaper, the administration certainly appears to be ethically confused, if not morally vacuous, likening the abortion issue to the treatment of HIV-positive patients. The point is not abandonment of a patient or the refusal of treatment to individuals who have had abortions or to HIV-positive patients, such patients have the right to receive professional care from nursing staff. However, the nurses transferring from St. Joseph's are coming out of a tradition that believes that human life is inviolable; it must be defended and promoted, reverenced and loved. An abortion is the direct killing of an innocent human being. In such a tradition to participate in abortion is to assist in murder. I think that certainly constitutes "abandonment" of one of the patients involved. We are dealing with a different category of questions.
In addition to similar letters from all parts of Canada and signatures of 8,000 petitioners that I deposited in the Senate over the past few years, asking for the protection of their conscience at work forces me to appeal to you this morning.
As a physician, I am aware of their plight and their helplessness.
The purpose of Bill S-7 is to protect practitioners and health care from coercive inducements such as the threat of lost beds, turned down promotion or employment, to perform a surgical or a medical act or to omit an act of care, the effect of which is to put human life at unnecessary risk.
I stress unnecessary or avoidable risk because almost all medicine intended for one's good carries some risk. However, a decision to provide a patient with no nutrition or water, or worse, at least an injection is obviously to deliberately expose a human life to avoidable risk.
The social good that Bill S-7 defends is the freedom of a practitioner to believe and live the belief that human life is sacred, or -- if he or she prefers non-religious terms -- inviolable.
What is sought in Bill S-7 is not a vast, sweeping enactment to exempt health practitioners from duties for any conscientious reason at all. Health care practitioners know that there are bound to be difficult judgment calls, subordinated personal preferences, aversions to overcome and inevitable risks. There is no interest to accord a person with excessive scruples or exaggerated compulsions the means of frustrating his or her employers or clients who are in need of their attention, particularly their life-saving attention.
Bill S-7 repeats a clear and objective test: Was the aggrieved practitioner subject to actual or implied threats of reprisal? Was the reprisal to be suffered for refusing to participate in an action or inaction that would expose a human life to risk or destruction? Did the threat of reprisal arise because of the practitioner's known conviction that human life is inviolable? Was that conviction known?
These are the objective, legal tests to which Bill S-7 gives rise. Should any of them fail, a plaintiff's case would not succeed. Appropriately for criminal law, the onus is on an offended practitioner to prove the offence and the wrongful intent behind it. This onus protects the innocent.
As I mentioned in my speech at second relating in the Senate, I have received, over several years, a large volume of correspondence, including more than 8,000 petitions from health care practitioners, including physicians expressing distress where an ethical decision concerning the risk to human life was hampered by the fear of reprisals for their effort to save life.
Please note that there is a rational fear of reprisal for striving to avoid exposing life to lethal risks or to avoid destroying life.
The history of coercion experienced by health care practitioners is years old. As students in the medical class from which I graduated in June 1951 at the University of Toronto, we were asked to stand up and raise our right hands before the chancellor to take the Hippocratic oath. We promised to avoid committing murder, performing abortions, to be honest and concerned about the care of our patients. It was only then that we got our diplomas in medicine. I presume that coercion of conscience was even present in the days of Hippocrates.
A simple example of coercion is amniocentesis, a modern procedure that is putting a tube into the abdomen of a patient -- usually a pregnant woman -- trying to get some fluid out of the woman, the uterus, into which is bathed the foetus, the unborn child.
Today, the use of amniocentesis as a diagnostic tool is frequently abused simply to determine the sex of an unborn child. The test, which carries risk to both the child and its mother, is often requested and given solely to determine sex and sometimes in order to abort if the sex of the child is one that is not desired.
For example, in India, it is common for parents to desire male children. If they are told it is a female child, they often ask for that unborn child to be destroyed.
Some practitioners still refuse the test on the grounds that, in light of the risks, knowledge only of the child's sex is not medically necessary. These physicians or health care workers will often experience coercive pressures, threats or even reprisals for what, in reality, is good medicine.
Another example is embryo freezing. Most embryos do not survive cryogenic freezing. To choose to obtain a number of embryos at one time usually by super-ovulation and artificial insemination and to freeze them, is to decide that most or all of them will die. Many clinical practitioners today will not agree to freeze a human embryo, either as a means or an end. A good purpose might be seen as worthy, such as the return of a foetus to its mother's womb after life-saving surgery. However, many subscribe to the moral principle that ends do not justify the means.
Should these practitioners of good medicine, subject to escalating market pressures, have to set their conscience on the hat rack when they go to work in a fertility clinic? It really is a principle of fundamental justice to which I appeal through this bill, which is why I am confident that it would stand up to an examination under the difficult tests of the Canadian Charter of Rights and Freedoms. The size of the appeal and the many circumstances means there is a crying need for such a statute applicable everywhere in Canada.
On more than one occasion, the federal Human Rights Tribunal declined to uphold a practitioner's grievance about discrimination against his or her conscience or religious conviction in such a circumstance. The federal tribunal has tended to pass over these disputes as essentially labour issues. However, quite rightly, in my opinion, such cases were not handled by the provincial human rights tribunals. They have maintained that issues of conscience or religion and concern for the societal value of human life at stake belong to federal jurisdiction. The result, unfortunately, is that plaintiffs fall between the cracks.
I am surprised at how often I hear the naive belief that the Charter of Rights and Freedoms is somehow sufficient without statute to be applied under these terms to deter abuses of conscience or the freedom of conscience. Without the teeth of a statute or precedents, the Charter does no such thing. The Charter is not positive or punitive law in that sense. The primary use of the Charter is to test and to guide the application of other law and regulatory or legal procedures, which are generally constructs of the state. However, the Charter is not the only test of law or fair entitlement, and the established Charter tests themselves refer to fundamental principles of justice. The unfairness of coercion, where it compromises a conscience, formed in the interest of a particular good, especially human life, can be argued equally well without the Charter.
The Charter certainly is a vital expression of the place of just principles in the Canadian Constitution. Nothing in the Charter contradicts the venerable principles of part VIII of the Criminal Code, for instance, where the requirements of respect for the living are spelled out. The Charter includes "everyone" in its scope, having in mind future generations as well as those already born alive, or it could not stand as a constitutional law.
The High Court of Germany settled that point quite definitely and definitively in 1992 when it examined the principle of constitutional continuity. Our Charter itself provides for specific provisions to be made by Parliament to redress specific disadvantages where they occur in society.
Many practitioners who see medicine as a vocational call to save lives and serve patients' wellness, are at a marked disadvantage. They may find themselves surrounded by a utilitarian or consumerist idea of medicine, and their own value -- perhaps Judeo-Christian or Muslim -- that life is sacred, not just ignored, but set upon. Physicians who will not, for reasons of conscience, counsel abortion, are denied beds in obstetrical wards of our hospitals. Practitioners who will overlook a "do not resuscitate" order, or fail to issue one or who continue to treat the complaint of a patient who is dying of other causes, may also lose beds or privileges of admitting patients to the hospital, or even in the matter of seeking advancement in their particular sphere of expertise or even outright employment, they can be fired. This is coercion and there is no remedy under the Charter, though people may like it to offer one.
I have heard many more of these stories from nurses. As numerous hospitals collapse under the economic burdens of a runaway health care cost system, we find increasing examples of birthing units administered in common with abortion facilities. Therefore, as a result of staff reductions, nurses who are trained in birthing and obstetrical care are often now required to administer preparations for abortion. Many will not do so, and they suffer for it. Discipline for a nurse means much more than a job shift, a plea bargain, or change of hospital or venue. It means a record tainted with insubordination, a mark that means he or she will find it difficult or impossible to find work in the field of nursing at all.
Honourable senators, it is not a question of nurses making value judgments concerning who is or is not worthy of care. Nurses for Life have indicated that they are as willing to provide comfort and care, including all the necessaries of wellness, to a patient who happens to be having an abortion as to one who is not. What they cannot possibly do, without a travesty of the conscientious belief that human life is inviolable, however tangible that life may seem to some, is undertake steps to destroy human life. To such a nurse, the one patient is to be treated, and the other, too, without distinction.
Nurses and doctors also have a right to see their calling, their work, as a vocation. When we say professional vocation, the word "professional" occurs first, but is not necessarily first in importance. The French way of saying it is better. A vocation for the medical practitioner is something like religious dedication. For a large number of practitioners, whether Jewish, Christian, Muslim, Buddhist or Hindu, their vocation is experienced as an outgrowth of their religion. Most of these creeds consider life as sacrosanct. Even if a practitioner does not actually call human life "sacred," what is sacred to him or her may be the duty to human life. It is a fine distinction that we may find hard to understand if we are not a Buddhist, for example.
Another fine point is the regard with which a religionist may view authority. Such practitioners see in part VIII of the Charter, in fundamental justice or common law principles, a sacrosanct principle that stands in contradiction to the present pressure to end a life or put it to risk, perhaps for the convenience of another or for some lesser authority. These practitioners, too, have a legitimate grievance that the law, despite its principles, has not found expression in a form that gives them any substantive defence. They feel confused, betrayed and compromised in their trust in principle and the rule of law. That, too, besides their loss of job or advancement, if they do not succumb, is also a great tragedy in their life.
To conclude, honourable senators, I will attempt to answer your questions on whether criminal law is the appropriate place to enforce freedom of the conscience. Let us not forget that we are speaking always of a particular set of circumstances. It is true that in general terms religion, or religious freedom, has not been completely defined or circumscribed under Canadian law. Bill S-7 does not seek the posture to advance religion, per se, or even conscience in general. Bill S-7 seeks to be an effective counter to any coercion to suspend the particular belief that life is sacred or inviolable when practising health care.
The late Judge Walter Tarnopolsky, a venerable memory, someone who I knew very closely and worked with, was a renowned Ontario court of appeals justice and an Osgoode Hall professor of law. Twenty years ago he produced a seminal, unpublished paper entitled "Freedom of Religion in Canada: The Legal and Constitutional Basis (Osgoode Hall)." In that paper, Professor Tarnopolsky establishes that the head of power in Canada under which the freedom of conscience and religion would be protected is the criminal law power.
That paper, as well as his study, "The Canadian Bill of Rights," published in 1975 by MacMillan in Toronto, has been cited regularly by legal authorities and others studying the broader issues of religious and conscience rights, even after the enactment of the Canadian Charter of Rights and Freedoms, which came some years after the proposed Bill of Rights.
The established doctrine that religion and conscience finds its first head of protection under federal law remains settled and unchallenged.
Freedom of speech has long been recognized in common law and was often related to the freedom of religious expression. That is but one historic reason that federal jurisdiction is the first ambit for defence of inherent rights that are so fundamental in a free, just and democratic society.
Criminal Code section 172 declares that it is an offence to obstruct a religious meeting. The Human Rights Act forbids discrimination on the basis of religion or creed. Under the Canadian Charter of Rights and Freedoms, both provisions are subject to a consideration of "reasonable limits," where necessary, to protect "public safety, order, health, or morals, or the fundamental rights and freedoms of others."
These words are from the international document to which I will refer.
"Reasonable limits" are what constitutional experts mean when they say the right of religious freedom is not an absolute. However, the expression of one's conscientious belief that a patient's life is sacred is hardly something that threatens public order, health or morals.
At any rate, when the freedom to live this conviction is threatened by coercion, a statute is there to offer protection in accordance with fundamental justice.
A number of surveys of Canadian jurisprudence respecting the freedom of conscience and religion refer us to Article 18 of the International Covenant on Civil and Political Rights, which Canada ratified in 1976. The first three paragraphs of Article 18 are worthy of citation. Madam Chairman, could I read that into the record or do you want it printed as in the brief?
The Chairman: In this committee, we generally do not print things as appended to a brief, just because of the amount of paper that we must print.
Senator Haidasz: Then I will read it. The paragraphs of Article 18 in the International Covenant of Civil and Political Rights are as follows:
Paragraph 1:
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
Paragraph 2:
No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
Paragraph 3:
Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others.
Honourable senators, it is for the reasons of fundamental justice described in this last paragraph of the article that an emergency room paramedic can be compelled to assist in a blood transfusion even if he has become a Jehovah's Witness. Such a limit of his religious freedom in the circumstances is deemed a reasonable limit. However, a conscious and competent Jehovah's Witness patient cannot be compelled to submit to a blood transfusion. However, it is the refusal to take life-risking actions, not life-saving ones, that is backed by the power of Bill S-7.
Freedom of conscience and religiously formed convictions, and the freedom to express them, lie at the very root of the Canadian confederation. The cultural freedom of disparate religious groups has been a touchstone of Canada, in writing, in Civil Code, and what we call innate and inherent rights from the beginning of Confederation.
In the context of a novel reality that medical science and practice has shifted its moorings from the stays of respect for human life, there is need to give some teeth to the fundamental regard we have of conscience. Without teeth, serious abuses of personal freedoms, and ultimately of patients' lives, can hardly be defended against.
Honourable senators, I am prepared for your questions.
Senator Gigantès: Thank you for your exposition and your discussion of difficult philosophical problems.
You and I are the same age. I remember times when young women who became pregnant would go to back street abortionists and lose their lives or be maimed and not be able to have any more children. What do we do about them?
Senator Haidasz: In Canada, not only is abortion allowed, we have abortion on demand. There are pregnant women in Canada who have had abortions three or four times and still come for more abortions. Currently in Canada we have abortion on demand not because there is a law, but because there is a vacuity in the law.
Senator Gigantès: Supposing you are the only doctor in a small town and a young woman comes and asks for an abortion because she has been raped. You will say no, I presume?
Senator Haidasz: Because of my religious conviction, I would say that I cannot perform the abortion. Of course, every Catholic doctor has his own conscience. There may be circumstances where a doctor, for instance a Catholic doctor, may have to make some very drastic decisions. I cannot read the conscience of other physicians, but a Catholic doctor has a conscience and the way he is governed by his conscience is something that is his private matter. I really have difficulty in answering your question.
Senator Gigantès: It is a difficult question. If I were in your place, I would have the same difficulty.
Basic to what you propose are the rights of the unborn child, but a child that is already born also has those same rights. If Jehovah's Witnesses arrive with a small child who will die if it is not given a blood transfusion, do you not have a choice between saving the child's life or respecting the religious tenets of its parents? What do you do then?
Senator Haidasz: This is another difficult question. I do not know whether this question pertains to the subject-matter of this bill. This bill is specific. It tries to protect a health care worker from a coercion of conscience. I do not see the connection between your question, senator, and the object or purpose of this bill. I am unable to answer you.
Senator Gigantès: If you were told that the Hippocratic oath containing a prohibition against abortion was a wrong translation, what would you say?
Senator Haidasz: We had the text in English in our program. I would appreciate it if you would give us the right translation of the Hippocratic oath.
Senator Gigantès: It does not prohibit abortion.
Senator Haidasz: What does it say?
Senator Gigantès: It says there are things which you must not do, but it does not mention the word "abortion."
Senator Haidasz: Parts of the Hippocratic oath deal with harm to the pregnant woman or the child in the mother's womb. I should like to refer the senator to experts in this matter to try to answer your question if you are not satisfied with my answer.
[Translation]
Senator Beaudoin: This is your last day, Senator Haidasz, and it is very unfortunate because you have been in the Senate for a long time. I would like to take this opportunity to congratulate you on your long career with us.
[English]
I look at the subject of this bill as a question of objection of conscience, and it is a fundamental principle. The problem in Canada is that we do not have much jurisprudence on this issue at the level of the Supreme Court. You refer in your brief to Walter Tarnopolsky, with whom I spent many years at the University of Ottawa and with whom I produced a book on the Canadian Charter of Rights and Freedoms, along with some other lawyers.
The work referred to in your brief was completed in 1975, before the Canadian Charter of Rights and Freedoms. We now have the Canadian Charter of Rights, section 24, which says that if a right is violated, there is a remedy. As far as I can see, we do not have reference for this. In the United States, for example, there are applications to conscription for the army, et cetera.
Have you consulted a lawyer on this question of objection of conscience? I have respect for that principle. It is important. Our society is based on values like freedom of religion, et cetera, and objection of conscience is certainly a value that we should respect. However, is it proper to do it using the Criminal Code, as you do here, or should it be challenged under the Canadian Charter of Rights and Freedoms, section 24, or is it a provincial matter because health is primarily provincial?
You have selected one means, the criminal law. I do not say it is wrong; however, I am puzzled about it, and I should like to know if you have consulted a lawyer on this issue.
Senator Haidasz: All the consultations were done by my researcher Mr. Gary Knight
Mr. Gary Knight, Researcher for Senator Haidasz: A number of consultations were taken over the years. In fact, the development of this bill has taken nine years, all the time that I have worked for Senator Haidasz.
Most of the consultations have taken place with various lawyers who are associated with a particular lay association that I am closer to than I might be to the Evangelical Fellowship, but as well there is a lawyer with them whom I have consulted. In the consultation process, I canvassed all the questions that you have just raised as a fundamental basis of your final question.
I do not wish to take up too much time, but the question of the sufficiency of section 24 and other sections of the Charter of Rights and Freedoms are of great interest. I was ultimately pointed to Section 15 (2) of the Charter. We often hear about discrimination rights referred to 15(1), and we do not often hear about 15(2) which says basically that Parliament is entitled and enjoined to make correction for disadvantages where they are found to occur in particular circumstances or among groups. Subsection (1) relating to inequality of rights or equality of rights does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantage to individuals or groups, including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability, all of which terms were explained to me to be added by way of colouration, not necessarily definitive and a limiting set, but to give you the idea that, for example, another word, "conscience," which occurred in section 2(a) as a fundamental right, can be read into being understood as something here that one can have provisions to correct disadvantages with respect to the freedom of conscience.
I also canvassed the other question that you had about the criminal law power itself as being at all appropriate, and that is the reason that ultimately it led to a difficult-to-find work. This is not the 1975 Tarnopolsky work on the Bill of Rights. This is the unpublished essay that Justice Tarnopolsky wrote and is very hard to find. It is not in the Supreme Court library. It is not in the Library of Parliament. It is at the Osgoode Hall library. It is there that he establishes that the head under which conscience is to be defended, if there is any particular defence to make that applies across the country, is in criminal law. From that point on, he has been cited for this in pretty well all of the references to which I have been pointed.
Does that satisfy your question?
Senator Beaudoin: I follow you. If it is in Osgoode Hall Law School, there is no problem. We can find it. There is nothing secret.
Your thesis is that if we are looking for a remedy, there is obviously section 24 of the Charter. However, you say there is an additional remedy in the criminal law. That is an answer. However, I should like to have the counterpart to this.
When you refer to section 15(2), objection of conscience cannot come under section 15 as this section refers to equality before the law. For example, women were not treated adequately for centuries, millennia. We may have affirmative action to correct the situation, and this is what we should do and I hope we will continue to do that, however, this has nothing to do with freedom of religion. Freedom of religion is found in section 2. How do you relate that to affirmative action?
Mr. Knight: The Charter has not always been interpreted as being compartmentalized. The reference in section 15(2) to the other fundamental rights that we recognize and have expressed as reasons to have freedom and non-discrimination do relate to rights enunciated earlier in the Charter.
At least two or three major references have been published since 1984 on charter of rights and precisely what you are talking about, equality rights, have whole sections on the issue of equality of religion. Where religious discrimination can be manifest in the workplace, it is precisely that discrimination or disadvantage that religion has to our practising health care and to those who believe particularly the tenet that human life is sacred.
Every clause in the bill that is attracted to a putative offence is one that is only attracted if the tenet that human life is sacred or inviolable has been offended by way of coercion. This is brought about by the experience of disadvantage in a large group of people, at least 8,000 of them who have written petitions.
Senator Beaudoin: In your brief, Senator Haidasz, you indicate that you are prepared to return to this committee for further questions. We may not be able to dispose of this bill right away as the question of objection of conscience is a concept of law that is important and is the basis of your bill.
We will hear people who will address this question in Canadian law. The problem is not an easy one, but we are here to settle difficult problems.
The Chairman: Senator Beaudoin is quite correct that when we go through the process of the hearings that we will likely have on various bills and this one comes up in its order, we will give you the last kick at the can on this. We will invite you back.
Senator Jessiman: Do I assume, because you have been nine years bringing this forward, that you have not convinced the Minister of Justice of the federal government that this should be a government bill?
Senator Haidasz: In all of the bills I have brought forward, I have never consulted the minister.
Senator Jessiman: Is there any such legislation in the United States or anywhere in the world?
Mr. Knight: It may be pertinent to the question, although it is an indirect answer, senator, and I apologize for that. I have not sufficiently canvassed other jurisdictions for the existence of similar law or similar statutory provisions.
It is of interest that the German High Court in a judgment from 1993, raised the question of whether a constitution can be considered a legitimate instrument for the future if it does not bear in mind the inalienable right to life of each subject, even in the womb. In other words, if a constitution does not bear in mind the future progeny, then it is not a constitution. It only is in effect today, while there are the living who subscribe to it. What happens to the newly born? How does it apply to them? Since we have a principle that a constitution will apply by natural justice, it must, therefore, apply the moment the individual comes into existence -- not legal existence, but fundamental existence.
I am sorry that my response is so indirect, but that is the only reference I have.
Senator Jessiman: Senator, you are a member of the medical profession and you would know many people in the nursing profession. Have you canvassed both of those professions as to whether or not they support this bill?
Senator Haidasz: Yes.
Senator Jessiman: Will they appear before us to support the bill?
Senator Haidasz: Yes, senator.
Senator Jessiman: You have already told us that there have been cases of discrimination and they have gone to human rights tribunals.
Senator Haidasz: Provincial tribunals.
Senator Jessiman: Those tribunals have indicated that the matters are not within their jurisdiction?
Senator Haidasz: Yes.
Senator Jessiman: Thank you very much.
The Chairman: Have you canvassed the Canadian Medical Association?
Senator Haidasz: Not the Canadian Medical Association, I said a nurses association and individual physicians.
Senator Jessiman: I asked about the Canadian Medical Association first.
Senator Haidasz: Not the medical association, no. However, the executive members of the Nurses for Life Association.
Mr. Knight: It is directly relevant to that question.
Senator Jessiman: What is the position of the Canadian Medical Association? I am certain they will be here and will tell me.
Senator Haidasz: I do not know their official position on this bill. In fact, this bill is so young I do not know if they have read a copy of it.
Senator Jessiman: Does the same go for the nursing association?
Senator Haidasz: Yes. I only consulted a few executive members of the Nurses for Life Association of Canada.
The Chairman: I might say that the Nurses for Life Association has contacted this committee and wishes to appear before us.
Mr. Knight: The Christian Medical/Dental Association has also expressed its support.
Senator Gigantès: What proportion of this country's nurses belong to the Nurses for Life Association?
Mr. Knight: That is a difficult question to answer as Nurses for Life membership is based on the principle of free association. In other words, they do not have a subscription list of which I am aware.
I suggest the best people to answer this question would be the Nurses for Life when they come here. I do understand that they are in touch with over 4,000 nurses who have expressed concern about this experience of coercion.
Senator Haidasz: The Nurses for Life Association are also members of the various nursing associations across Canada.
Mr. Knight: It is also pertinent that the CMA published a position paper a few years ago in which the general expression was presented that physicians and health care workers must not be subject to coercion. They are supportive of the principle. Whether they would be supportive of this particular expression in the Criminal Code, we could only canvass them to determine. However, since they are such a huge organization, we have learned in the past that the head group of the organization does not necessarily speak for the large numbers of physicians and that could be pro or con to our position.
Senator Cogger: Senator Haidasz, is today your birthday?
Senator Haidasz: It is on March 4. However, since we are not sitting in the first week of March, I must take my leave at 6 p.m. this afternoon.
Senator Cogger: We shall miss you. I will take the opportunity to wish you in advance a very happy 75th birthday and many happy returns.
I listened carefully to the answers to the questions, and I am in a quandary, maybe not unlike some of our colleagues. We find ourselves addressing a piece of legislation, the intent of which is undoubtedly admirable and commendable; it ought to be supported. However, when we look at how it fits into the global picture, that is where I have difficulty. Perhaps you can enlighten me.
In your brief, you state that physicians who will not, for reasons of conscience, counsel abortion are denied beds. Practitioners who overlook "do not resuscitate" orders may also lose beds or advancement.
I am not a member of the medical profession. However, I assume that the medical establishment is governed by other doctors, by a board or by a group.
Decisions to deny beds are made by doctors who have another kind of religious belief, presumably, where they are comfortable allowing abortions or practising abortions, et cetera. They are equally covered by the Charter of Rights and Freedoms. They have their right and freedom of conscience in exercising their decisions. Yet, under the same set of rules, one exercises his power to allocate beds in a hospital as he sees fit pursuant to his conscience. Another member of the medical profession clearly does not see it that way and find he may be denied, as he says, an allocation of beds. One will find himself charged under the Criminal Code.
In the name of his freedom, one does not practice abortion. The other fellow, in the name of his freedom and perhaps in the name of his duty or responsibility to administer a hospital, will make a different decision. One will claim that his rights have been trampled upon by the other fellow who then commits a criminal act.
Senator Haidasz: I have received complaints from nurses, doctors and even a father who was an anaesthetist and whose son was training to be a gynaecologist. I am only trying to react to these people's complaints as a legislator or a member of a legislative body. In my 40 years of parliamentary experience, I see that we pass many laws that do not have any teeth; they are useless. People write letters to me or talk to me, and complain that they went to a nursing body or a medical body, then to a provincial Human Rights Commission, and they were not helped. They did not receive a remedy for any damage. They feel that something is lacking and that they are entitled to protection.
The only thing I had to offer them was that I could try to bring the nature of their problem to Parliament, hoping that we can give teeth to this through some statute or law.
I have chosen the route of the Criminal Code because the Criminal Code has real teeth and the ultimate authority in prescribing sanctions and remedies. This is only my attempt to help these people who feel they have been persecuted, oppressed or denied justice and fairness.
If there is any other way I can help these people, I would certainly be glad to hear it. However, I think this is the best possible solution to their problems. I have chosen this route because the Criminal Code is substantive law. It can defend people from damage and demand a retribution.
I am not a lawyer, nor am I a jurist. I am an ordinary senator and a physician concerned about these people. I am trying to seek the best solution to the problem.
If there is a better answer, senator, I am open to your advice and suggestions.
Senator Cogger: I do not purport to have the answer. I wish I did.
I understand clearly why you went the route of the Criminal Code. On the other hand, you might wish to consider that by going that route you also impose upon the other party a higher threshold of evidence -- beyond a reasonable doubt. Assuming this bill passes, it might be very difficult to satisfy someone to convince a court of law beyond a reasonable doubt that it is strictly because of religious beliefs that someone was not promoted, or whatever. I believe that the burden of evidence is easier before other courts and would not impose such a burden -- for instance, in front of the Human Rights Commissioner. The teeth are bigger, but the means of getting the bite is much more difficult.
Mr. Knight: Senator, that is precisely the mentality of moderation. The intention is not to give such a power to plaintiffs to simply be able to prove something on a balance of probabilities or some set of allegations. Sometimes hearsay goes beyond hearsay in courts.
The point is well taken that in order to demonstrate that someone ought to be convicted for coercion requires a very high standard of proof. The fact that it comes down upon them in the first instance as a charge at criminal law is offset greatly by the fact that the criminal law places a huge onus upon the person making the accusation. That is the reason for moderation.
Another point in relation to your question about why we looked at criminal law and other powers but chose the criminal law power instead of the Human Rights Act is precisely that other provisions already exist in criminal law with respect to the regard for human life and that the necessities be provided to a human being. Even in health care, no matter that health care is largely a provincial matter, at least the delivery of services is provincial. However, the issue of fundamental treatment of human life is within the criminal head of power. That is the reason I pointed the committee to take a look at the seminal work of Justice Tarnopolsky. When you take a look at that, perhaps it will answer some of your reservations.
Senator Lewis: One of our principles is that everyone is presumed to know the law. It is somewhat of an illusion in one sense.
This bill would create a new offence punishable on summary conviction. The bill does not provide for any penalty. Therefore, I presume that the penalty would come under what I call the catch-all section of the Criminal Code dealing with penalties for summary conviction.
Can you tell us what the result of this bill would be if it were passed?
Senator Haidasz: The judge would make the decision and impose the penalty he or she felt was appropriate.
Senator Lewis: I believe there are provisions in the Criminal Code in that regard.
Mr. Knight: There is a question similar to that relating to another bill which Senator Haidasz has before the Senate, and that is in relation to stated maxima for the amounts of harmful substances allowed in tobacco. The question was raised of whether that establishes a hard and fast set of guidelines. The answer is that although these establish ceilings, there is the process of equity within which the regulating authority can determine that a lower threshold is appropriate.
Similarly, the reason a specific penalty was not mentioned here is that in deferring to whatever ceilings are decided by Parliament to be appropriate in the Criminal Code with respect to general sentencing under the provisions for summary conviction, we look for the practice of equity in the practice of law.
As a lay person, I once helped to represent someone in tax court. The judge said that the tax law has no equity. I said that it was my understanding that no written law had equity and that I thought it was up to the judge to provide equity. He had forgotten that because many lawyers and judges do not study jurisprudence.
This is what is sought here; the practice of equity and understanding the particulars of the case before the judge so that he can use his discretion.
Senator Lewis: That is all very well, but I believe that in the Criminal Code there is a provision for summary conviction offences.
Senator Cogger: Our counsel may have the answer to that.
Senator Lewis: We should get it on the record.
Ms Katharine Dunkley, Director, Law and Government Division, Research Branch, Library of Parliament: In section 787 of Martin's Annual Criminal Code there is a general penalty for summary conviction offences, which is a fine of not more than $2,000 or imprisonment for six months, or both.
Senator Lewis: That is the maximum?
Ms Dunkley: Yes, that is the maximum, so any discretion would be exercised below that level.
Senator Lewis: Therefore, at least we know the result if this bill is passed.
Mr. Knight: Also, there is not the same thing in the criminal record that goes with indictment. By no means is there an intention to make such a punitive looking law seem to be a sledge hammer. It is giving some teeth to those who are disadvantaged.
[Translation]
Senator Pépin: I am not a lawyer, but I will come at this from a different angle: you are a doctor, I am a former nurse who specialized in gynecology and obstetrics. I am still in close contact with the nurses of Canada. Moreover, I am going to speak at their next annual assembly in June. I was also on the board of a Montreal hospital until quite recently.
When I look at your proposal, I wonder, how can we implement what you are asking for? You say that a doctor who does not do abortions could be refused the right to hospitalize a patient. I do not know of any hospital that currently forces a doctor, if he wants to hospitalize patients, to perform abortions, even if he is a gynecologist. He has the choice to decide to perform them or not. Correct me if I am wrong. A doctor cannot be refused a bed because he does not perform abortions, unless the hospital is reserved for that purpose. An obstetrician or a gynecologist has the right to choose to perform them or not.
You say there are nuances. Gynecology students can perhaps perform abortions during the course of their studies, but when it comes to having access to hospital beds, no one can force you to perform abortions.
I do not know how you organize a department. Let's take the emergency room as an example. At present, whether it be in Ontario or Quebec, emergency nurses, who are few and far between, are overworked. If, for example, a patient comes in because she has had a miscarriage following an abortion and she is refused treatment, what could a nurse or doctor tell this woman? What would the procedures be?
[English]
Mr. Knight: I am sure that Senator Haidasz can give some reflection on letters he has received from doctors who have experienced the things to which he has referred.
I am not sure I understand your question, but the purpose of this bill is certainly not to make life difficult for anyone who wishes to make decisions about care post-partum or after the fact of an abortion.
As was mentioned in the brief, we have heard representations from Nurses for Life and from physicians to the effect that their objection is certainly not to treating people for whatever needs they have. It is that they cannot, in good conscience, actively participate in the act or omission that causes unavoidable death.
A person coming to the emergency ward with post-abortion stress syndrome or complications would be treated.
[Translation]
Senator Pépin: She goes to the hospital for an abortion. She says that she can't help because she knows that it's an abortion? These things happen.
You say that amniocentesis is often used to determine the baby's sex.
[English]
Senator Haidasz: That is the request of a patient or the husband of the patient to the radiologist or obstetrician.
[Translation]
Senator Pépin: Normally, amniocentesis is done to determine whether the child has any malformations or other problems. I do not know if it is common practice to do an amniocentesis just to determine the baby's sex.
[English]
Senator Haidasz: I am saying that there are spouses of patients who ask for an amniocentesis just to find out whether their wives are carrying a male or female baby.
[Translation]
Senator Pépin: Tell me why a nurse or a doctor could refuse to perform this medical procedure? I do not understand.
[English]
Senator Haidasz: It is an abuse to use that test just to find out whether the foetus is male or female. That is a great abuse of amniocentesis.
Mr. Knight: It can hurt a child.
Senator Haidasz: Amniocentesis carries risk and it also costs money to the state.
Senator Pépin: I do not think this is a money problem that we are discussing.
Senator Haidasz: That is only a secondary aspect for some people. I know of some doctors who make decisions taking into consideration whether it is worth it to spend that much money for this or that test.
Senator Pépin: Yes, but this is not the argument that we are discussing now. It is against their conscience for people to participate in amniocentesis and in embryo freezing. What happens if I am head of a department?
[Translation]
You are making broad generalizations. At the outset, I agree that someone must have the right to say that it is against his or her beliefs, and that he or she cannot participate in an abortion. I can respect that. The way that you're presenting it, I'm under the impression that we have reached the point where amniocentesis is used to make a choice. I find that too general. I'm under the impression that we are making a case against abortion rather than for conscientious objection; I do not know.
You are also saying that nurses would have trouble finding jobs. If a nurse is against abortion, she could not find a job in other hospitals. Why do you say that? There are other things to do in hospitals apart from abortions.
[English]
Senator Haidasz: Some nurses have told me that they have this particular problem. Probably this problem, in your opinion, is not important.
Senator Pépin: That is not what I am saying. You say they can hardly find work. I ask why they cannot find work. I do understand that they resent performing abortions, however, with the number of hospitals across Canada, it must not be very hard to find work if the only problem is that they do not want to perform abortions. There are other departments.
Senator Haidasz: I do not know where you live, but in Toronto it is difficult for nurses to find a job to do anything, even to change the beds.
Senator Pépin: Then it is not because of their position on this issue.
Senator Haidasz: You said that any nurse can find a job in any hospital. That is what you said and that is what I am answering.
Mr. Knight: I can give you the example of the Markham Stouffville Hospital which is north of Toronto in the Richmond Hill area. About three years ago, because of the collapsing of resources and the combination of birthing units with abortion facilities, nurses who were trained in obstetrics and who were previously practising in the birthing unit were now being required to participate in procedures necessary to abortion, the preparatory procedures.
These nurses objected on the basis of their conscience and were faced with difficult options, such as having to work in an area where they had no training, or taking a cut in pay or, in one case, losing the job all together, or facing discipline for insubordination, which decision would go on her record. Maybe you have never suffered with colleagues who had the blight of insubordination on their record but I have, several times. These individuals have found it extremely difficult to get any employment as a nurse.
Senator Pépin: I agree. I know that obstetrics and gynaecology are now often on the same floor. Probably the nurses working in obstetrics must work in gynaecology as well because of that. I will have to think a lot about this.
Senator Moore: I wish to return to Senator Cogger's topic. My immediate reaction is that the Criminal Code is a very powerful device to be used for something as sensitive or delicate as a personal conscience matter. I also think that hospitals and their administrations are normally under provincial jurisdiction. Is this an invasion of that jurisdiction? Should this issue not be addressed through provincial legislation?
Did something move you to try to have this bill brought in to make a change in the Criminal Code rather than try to create a provincial law? Could you answer that?
Senator Haidasz: The petitioners who came to me tried everything at their disposal that is available in a province. Most often they were referred to their provincial human rights commission and they did not get anywhere with their complaint or problem.
The other reason is that the Criminal Code applies to every province and territory in Canada. I thought this was a good catch-all way of providing some satisfaction and redress for these health care practitioners who came to me with their problems.
I do not purport to know how each provincial human rights commission is functioning. For those who came to me with complaints, the Ontario provincial human rights commission was unable to help them. I had my assistant contact the federal human rights commission and they were not helpful. I tried to get them some help which would be available to them no matter in what province they lived. To me it seemed that the Criminal Code would be the best place. Perhaps there is a better place. If so, I would appreciate your suggestions.
Senator Moore: Any case where an individual's rights are being trampled is important. How many cases are you aware of where someone was asked to participate in a procedure which was against their religious belief, where their career was harmed and where they ended up going before a provincial tribunal or a federal one? Are there many such cases, senator?
Senator Haidasz: I did not read all of the letters and all the names of all the petitioners. However, my assistant Gary Knight tells me there were at least a couple of hundred cases brought to his attention.
Senator Jessiman: Did the several hundred cases come before tribunals?
Mr. Knight: No, the several hundred were letters written by physicians and nurses complaining of particular circumstances. Those that went actually to tribunals would number under a dozen, but that is enough to establish that the tribunals were not helping.
Senator Jessiman: On the same point, we are talking about persons working in the hospital. What about persons being refused admission to courses or persons being refused permission to enter professions? How many examples do you have there?
Mr. Knight: In the case of students who wished to practice obstetrics, for example, they had to participate in an abortion. There was no option for them in the particular school at which they were studying. There are several dozen cases. There are at least one or two cases in the area of modern fertility management and the freezing of embryos in medical science.
Senator Jessiman: What about in memberships in professional associations?
Mr. Knight: I cannot recollect anyone complaining about not being a member of the association.
Senator Lewis: On the question of the Human Rights Commission, I gather that they received no help. We were told that there were about one dozen applicants. Was it because the commission said, "We have no jurisdiction in this or we cannot deal with this," or was it that the applications that were made were turned down either when the applications were made or after hearings?
Mr. Knight: About 90 per cent of the cases to which I have referred -- and I am referring to them by memory -- were cases in which the tribunal of concern did a preliminary examination of the merit and referred the applicant to try a different tribunal because they felt this was not their jurisdiction. It was a jurisdictional decision.
Senator Moore: I received a letter from the Most Reverend Colin Campbell, who is the Bishop of the Diocese of Antigonish in Nova Scotia. I wish to read part of it to you and then I wish to ask you a question about it. He writes:
It has been brought to my attention that Senator Stanley Haidasz has sponsored a, Bill S-7, an Act to amend the Criminal Code to prohibit coercion in medical procedures that offend a person's religion or belief that human life is inviolable. Frankly, when this was brought to my attention I was amazed to discover that these Rights are not already protected by Law or the Human Rights Code. It seems difficult to believe that in a free Country that anyone would be coerced into an activity that violated their conscience or violated the dignity and the Right to Life.
In your research in preparing for your presentation today or for the bill, have you or your assistant found any legislation, or you are not satisfied that law does not exist somewhere to achieve what you are trying to do here without making it a criminal offence?
Mr. Knight: Obviously, that is an area of contention because this question has been raised several times. Yes, we did canvass legal opinion as to whether there existed other instruments or venues in law. Our interest, however, was that it become federal law so that it would be applicable across the country, since the petitioners were from different parts of the country.
We were occasionally referred to the fact that a code does exist, namely, the Human Rights Code. However, again, it was observed that there had been no cases involving this issue specifically.
There is no case law where the code was of assistance to people in this predicament. It is apparently because the code is seen as being interpreted and covers law the way the Charter does. Perhaps it is because lawyers do not know how to proceed. There does exist some remedy for transgressing any federal statute. If you can prove that some body has transgressed that statute by an act of discrimination, perhaps there can be some remedy and a precedent set. This has not happened -- at least in the circumstances in which we are trying to respond.
Most lawyers felt that it should be tackled by each and every province. Even lawyers who were defenders of the principle that life is sacred were saying that they did not have any trust that the federal government could achieve anything for the conscience of workers across Canada. They recommended going to each and every province. Nonetheless, even those lawyers deferred to the fact that it is certainly defensible at law and to the Charter to try to do this under the head of criminal power, which is where it belongs.
They recognized that because the principle is human life and human conscience, it belongs in that jurisdiction. However, in terms of why we did not choose to use the Human Rights Code per se is because there exists other provisions in the Criminal Code itself and also because it provides greater assurance, objectivity tests and requirements of proof and defence of the innocent more substantively. In other words, the accused has a relatively easy time of making it hard for the accuser to prove that they have in any way coerced the person or used any unreasonable limits of their religious freedoms to end a human life.
Senator Beaudoin: If I follow your reasoning, to protect human life, you prefer to rely on the Criminal Code rather than on the Charter itself, especially section 7; is that correct?
Mr. Knight: We are relying on the Charter to stand up on this particular piece of law. One does not look to amend the Charter to say, in particular, that if people are coerced to end human lives against a religious conviction, that is a no-no. We do not look for that in the Charter. We believe that the principles are already there and that they, themselves, will stand up as a defence and endorsement of this particular statute.
Senator Beaudoin: You wish to use the Criminal Code because you are inclined to think that you need that protection because it is not strong enough in the Charter of Rights; is that correct?
Mr. Knight: It is also the place where we are directed.
Senator Beaudoin: I am not making any judgment here, I am just asking a question.
Mr. Knight: Judge Tarnopolsky made it clear that that is where this defence belongs.
Senator Beaudoin: He wrote that in 1975, before the Charter of Rights and Freedoms.
Mr. Knight: The Charter does not contradict this.
Senator Beaudoin: The Charter was written in 1982. About 20 jurists wrote a book at that time on this very subject. I cannot speak for Mr. Tarnopolsky at all because his writings speak for themselves. However, I wish to understand why you have the bill before us.
You say that we need the bill and we rely on the Criminal Code because it is the only way to do it. Senator Haidasz is saying that if there is a better way, show it to me. Is that not what you are saying?
Senator Haidasz: Yes.
Mr. Knight: I am not saying it is the only way. I am saying that it seemed the way that was most appropriate after all the advice was canvassed and received. It was the most direct and appropriate approach.
The Chairman: Since you are applying this bill under the Criminal Code -- and, to get away from the question of abortion and into the question of blood transfusion and religious convictions -- suppose you have a doctor working in a small hospital who is a Jehovah's Witness, a child comes in who desperately needs a blood transfusion and the doctor refuses to do it through his own personal religious convictions but the director of the hospital then says, "You must do it."
Would that director, then, fall under this law?
Mr. Knight: No, he would not. There are two reasons why he would not fall under the terms of this law. First, there already exists what are called bona fide occupational requirements that are well established at case law. Human rights cases establish that, to work in an emergency ward, for instance, and be faced with people who are suffering trauma and rapid loss of blood, one requirement is that you are prepared to do blood transfusions. When a person begins in this employment it may be that they are not a Jehovah's Witness and during the employment they become a Jehovah's Witness. It is considered to be a bona fide occupational requirement and a reasonable limit of their religious freedom to still let them know that, if they wish to remain in this employ, they must suspend their particular conscience in this matter, therefore, can we make some accommodation. There is also the obligation to make some reasonable accommodation for them. If there is no effort taken to make some reasonable accommodation, the person can make a complaint at the human rights tribunal and those kind of complaints have succeeded and will succeed. That is not an issue.
The second part of the answer is the reason it would not apply, or this offence applies, and the code is attracted only in the event that what is being coerced against, if you like, is the performance or non-performance of an act so as to save a human life. In other words, the person who would be coerced and have a grievance would be someone who wishes to perform, wishes to give a blood transfusion, and is told no, you must not.
The Chairman: You are doing it really in the negative and narrowly applying it in that fashion?
Mr. Knight: Yes, that is necessary at criminal law.
The Chairman: What about other forms of discrimination? I see this as a form of discrimination. Should other forms of discrimination such as against age, sex, gender or ethnic origin also come under the Criminal Code?
Mr. Knight: To the extent that a person who feels discriminated against because of their age is able to in any way show that that discrimination somehow impedes their respect for a fundamental value like human life, as enunciated at part VIII of the Criminal Code, perhaps, but that would require some intellectual gymnastics to try to say that, because I am 75 years of age, my refusal of employment will somehow deleteriously impact upon the life of someone else.
There was an immigration case where a man was psychologically disturbed and there was no clinical help that could really assist the man. His mother could. She was the only one who could. She, too, was facing a question of whether she could remain in Canada as a legal immigrant.
It could perhaps be constructed that a useful piece of statute could be created that would say, in a case like that, one would be ill-advised to extradite or send the mother away because she is serving a great social good in being the only person -- and saving taxpayers' money, too -- to assist her poor son, who is just not capable otherwise. That actually happened.
The Chairman: Perhaps we are stretching things somewhat.
Senator Haidasz, you have served a long and distinguished career in Parliament, both in the Senate and the House of Commons and, for a swan song, you are making quite a fine one.
The committee adjourned.