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

In the case of Christian Medical and Dental Society ofCanada 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 thePolicies of the College requiring physicians who invoke rights of conscientiousobjection in order not to participate in procedures that violate theirreligious 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), infertilitytreatment for heterosexual and homosexual patients, prescription of erectiledysfunction medication, gender re-assignment surgery and medical assistance indying. The Policies defined effective referral as “a referral made in goodfaith, to a non-objecting, available, and accessible physician, otherhealth-care professional, or agency.”

The objectorscomplained that such referral constitutes complicity, which is as wrongful asdirect participation, in the procedures which violate their religious beliefs.The Policies were therefore claimed to be in breach of the complainants’ rightto “freedom of conscience and religion”, protected under section 2(a) of theCanadian Charter of Rights and Freedoms, under which CPSO is bound bydischarging functions delegated by government. Charter section 1 guaranteesrights and freedoms subject to reasonable limits that “can be demonstrablyjustified in a free and democratic society”.

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

Effective referralpreserves a proportionate balance between professionals’ rights ofconscientious objection to conduct procedures and patients’ rights of timelyaccess to appropriate health services.

SOURCE: ReproHealthBlog, University of TorontoLaw School, summary by Bernard M Dickens, 9 December 2019 ;PHOTO: ChristianLegal Fellowship,15 May 2019