Focus On

CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Freedoms of conscience and religion

Thursday, June 13, 2019 @ 6:38 AM  


Appeal by the physicians from a decision dismissing their application challenging the constitutionality of two policies enacted by the College of Physicians and Surgeons that required physicians who objected to providing certain medical procedures or pharmaceuticals on the basis of religion or conscience to provide the patient with an effective referral to a non-objecting, available, and accessible physician. The referral could be made to someone other than a physician and by a staff member who was not a physician. The appellants argued that the effective referral requirements infringed their freedom of conscience and religion under s. 2(a) of the Charter because the requirements obliged them to be complicit in procedures that offended their religious beliefs. The appellants also claimed that the effective referral requirements discriminated against physicians based on their religions, thus infringing their s. 15(1) equality rights. The Divisional Court found that while the Policies infringed the appellants’ freedom of religion, the infringement was justified under s. 1 of the Charter, because the Policies were reasonable limits, demonstrably justified in a free and democratic society. The Divisional Court concluded that at least some of the appellants were not free to practice medicine in accordance with their religious beliefs because of the effective referral requirements and that this interference was not rendered trivial or insubstantial simply because physicians practiced in a regulated profession that held patient-centred care as a core value. The Divisional Court dismissed the appellants’ claim that the Policies infringed their equality rights because the Policies did not have the effect of reinforcing, perpetuating or exacerbating a disadvantage or promoting prejudice against religious physicians and did not restrict access to a fundamental social institution or impede full membership in Canadian society. The Divisional Court found that the effective referral requirements satisfied the Oakes minimal impairment test because they fell within a range of reasonable alternatives to address the conscientious and religious objections of physicians. The appellants argued the effective referral requirements were not minimally impairing of their rights and that alternative measures would achieve the same objective, while respecting their freedom of religion. They argued that a generalized information model, in which objecting physicians gave patients information concerning publicly-available resources and services, would provide a practical, workable and less impairing alternative to effective referral.

HELD: Appeal dismissed. The Divisional Court correctly concluded that the interference with the appellants’ freedom of religion was neither trivial nor insubstantial and that s. 15(1) was not violated. The Policies represented an attempt to balance equitable access to health care with physicians’ religious beliefs. The Divisional Court did not err in articulating the purpose of the effective referral requirements and struck an appropriate balance in identifying a purpose that was more specific than the animating social value of the Policies, but broader than a virtual repetition of the effective referral requirements. Requiring objecting physicians to give an effective referral for medically assisted death, abortion or reproductive health care services would promote patient access to those health care services. Given the way health care was currently practiced and made available in Ontario, effective referral was the key to accessing health care services of all kinds, including the wide variety of services to which some physicians had religious objections. The alternatives identified by the appellants were fatally flawed. While less impairing of their rights, they were focused on their rights and not on the objective of the effective referral requirements or the interests of vulnerable patients. The appellants’ generalized information model, like other self-referral models, would impair equitable access to health care rather than promote it. It would impair equitable access to health care because it would enable objecting physicians to abandon their role as patient navigators without an appropriate transfer of the patient to another physician or service. In view of the vulnerability of the patients, this was not adequate. It was appropriate for the College and the Divisional Court to conclude that patients should not bear the burden of managing the consequences of physicians’ religious objections.

Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, [2019] O.J. No. 2515, Ontario Court of Appeal, G.R. Strathy C.J.O., S.E. Pepall and J.M. Fairburn JJ.A., May 15, 2019. Digest No. TLD-June102019009