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HEALTH CARE PROFESSIONALS - Government of - Doctors - Constitutional issues

Wednesday, March 07, 2018 @ 8:31 AM  


Applications by the Christian Medical and Dental Society of Canada et al, challenging the constitutional validity of two policies of the College of Physicians and Surgeons of Ontario (CPSO). The individual applicants were physicians licensed by the CPSO to practice medicine in Ontario. The CPSO was the self-governing body for the medical profession in Ontario. The two policies at issue required physicians who were unwilling to provide elements of care on moral or religious grounds to provide a patient requesting such care with an effective referral to another healthcare provider. The particular elements of care to which the individual applicants objected included the provision of abortions, medical assistance in dying and, in some cases, contraception, fertility treatments, prenatal screening, and transgender treatments. The individual applicants believed that such treatments were sinful or immoral and further believed that they were required by God to refrain from engaging in such conduct. They believed that the action of providing patients with an effective referral in respect of elements of care to which they objected constituted complicity in the provision of such elements of care. The applicants took the position that the policies infringed ss. 2(a) and 15 of the Charter. They further argued that the enactment of the policies exceeded the CPSO’s legal authority and did not constitute a limitation on rights that was prescribed by law for the purposes of s. 1 of the Canadian Charter of Rights and Freedoms (Charter). The respondent CPSO took the position that the burden upon the individual applicants of compliance with the policies was trivial or insubstantial.

HELD: Applications dismissed. The constitutional issues were analyzed using the Oakes framework. The CPSO not only had the authority but was obligated to provide guidance to its members regarding the manner of compliance with Charter values in their practice of medicine. The policies were not ultra vires the authority of the CPSO. There was no violation of s. 15 of the Charter, but the policies infringed the rights of religious freedom of the individual applicants as guaranteed under s. 2(a) of the Charter. The burden or cost to the individual applicants associated with compliance with the policies could not be characterized as trivial or insubstantial. The effect of the policies was that at least some of the individual applicants were not free to practice medicine in accordance with their religious beliefs or their conscience. However, the limit imposed by the effective referral requirements of the policies was justified under s. 1 of the Charter. The policies were consistent with the CPSO’s duty to serve and protect the public interest, and the objective of the policies was of sufficient importance to warrant overriding the individual applicants’ rights of religious freedom. Ensuring equitable access to healthcare was a pressing and substantial goal. The effective referral requirements of the policies were rationally connected to that goal and the requirements impaired the individual applicants’ right of religious freedom as little as possible.

Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, [2018] O.J. No. 505, Ontario Superior Court of Justice, H.J. Wilton-Siegel, R.A. Lococo and W.M. Matheson JJ., January 31, 2018. Digest No. TLD-Mar52018006