CANADA – Ontario Court of Appeal ruling: conscientious objectors must provide effective referral

In the case of Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario (2019 ONCA 393) (decision online), the Ontario Court of Appeal unanimously upheld the lower court ruling that the Policies of the College requiring physicians who invoke rights of conscientious objection in order not to participate in procedures that violate their religious beliefs must provide a patient seeking such a procedure with an “effective referral”. Objected procedures included abortion, contraception (including emergency contraception, tubal ligation and vasectomy), infertility treatment for heterosexual and homosexual patients, prescription of erectile dysfunction medication, gender re-assignment surgery and medical assistance in dying. The Policies defined effective referral as “a referral made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency.”

The objectors complained that such referral constitutes complicity, which is as wrongful as direct participation, in the procedures which violate their religious beliefs. The Policies were therefore claimed to be in breach of the complainants’ right to “freedom of conscience and religion”, protected under section 2(a) of the Canadian Charter of Rights and Freedoms, under which CPSO is bound by discharging functions delegated by government. Charter section 1 guarantees rights and freedoms subject to reasonable limits that “can be demonstrably justified in a free and democratic society”.

The Court accepted the complainants’ evidence that effective referral offends their religious convictions, and (without addressing secular conscience) found that the Policies restrict their Charter right to freedom of religion. Restriction was found demonstrably justified under section 1, however, because the purpose of medical services is to serve patients’ access to medical care. The Court endorsed the lower court’s observation that “[a]s members of a regulated and publicly-funded profession, they [the complainants] are subject to requirements that focus on the public interest, rather than their own interests. In fact, the fiduciary nature of the physician-patient relationship requires physicians to act at all times in their patients’ best interests, and to avoid conflicts between their own interests and their patients’ interests” (para.187). The Court supported this finding by noting patients’ vulnerability regarding access to medical services of personal sensitivity, and dependence on medical professionals to guide them through otherwise obscure or obstructed pathways to other professionals who will provide the effective care patients seek.

Effective referral preserves a proportionate balance between professionals’ rights of conscientious objection to conduct procedures and patients’ rights of timely access to appropriate health services.

SOURCE: ReproHealthBlog, University of Toronto Law School, summary by Bernard M Dickens, 9 December 2019 ; PHOTO: Christian Legal Fellowship, 15 May 2019