The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario

HEADNOTE

The appellants, physicians in Ontario, challenged the constitutionality of two policies enacted in the Human Rights Policy by the College of Physicians and Surgeons of Ontario (College). The policies have an effective referral requirement which requires physicians who object to providing medical services on the basis of religion to refer their patient to a non-objecting physician or health care professional. This ensures equitable patient access to health care. The appellants submit that these policies infringe their freedom of religion and equality rights under s. 2(a) and s. 15(1) of the Charter. The Court held that the policies infringed s. 2(a), but not s. 15(1). However, the Court held that the infringement was justified under s. 1 of the Charter.

FACTUAL AND PROCEDURAL BACKGROUND

The appellants included five Ontario family physicians and three organizations representing physicians who object to some or all of abortion, medical assistance in dying, and other medical procedures and pharmaceuticals on grounds of religion or conscience. In 2015 and 2016 the respondent College, the self-governing body for the medical profession in Ontario, revised the Human Rights Policy. The purpose of the Policy is to outline physicians’ rights to refuse certain services for genuine reasons while ensuring health services are provided without discrimination. The revisions included Policy Statement #2-15 “Professional Obligations and Human Rights” and Policy Statement #4-16 “Medical Assistance in Dying” which both include an effective referral requirement. The effective referral requires physicians who object to certain medical services (such as medical assistance in suicide, abortion, and contraceptives) on the basis of religion to take positive action to provide the patient with a timely referral to a non-objecting, available, and accessible physician, health care professional, or agency. A Fact Sheet was released by the College in 2016 which provided guidance to objecting physicians on ways to comply with the effective referral requirement. The options provided included making a direct referral, assigning the task of referral to another health care provider, or establishing a point person within the institution the objecting doctor works in to facilitate referrals.

The appellants argued that that the effective referral policies infringed their freedom of conscience and religion under s. 2(a) of the Charter, and that the policies discriminate against them based on their religion therefore infringing their equality rights under s. 15(1). The respondent College argued that the policies do not infringe either s. 2(a) or s. 15(1), but that if they do, it is justified under s. 1.

The Divisional Court held that the effective referral requirements infringed the appellants’ freedom of religion under s. 2(a), but the appellants’ equality rights under s. 15(1) were not infringed. The Court did not consider a possible infringement of freedom of conscience. The Divisional Court then performed a s. 1 Oakes analysis and found that the policies were justified under s. 1 of the Charter. The appellants took issue with the Divisional Court’s findings regarding its s. 1 analysis. The appellants argued that the requirements of the effective referrals are not minimally impairing on a physician’s rights. Alternative avenues could be used, such as a “generalized information” model, or self-referring model, where objecting physicians could give patients information on publicly available resources instead of referring them to a non-objecting physician or health care professional.

RELEVANT LEGAL PROVISIONS

Canadian Charter of Rights and Freedoms, Section 2(a), Fundamental freedoms:
s. 2: Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion

Canadian Charter of Rights and Freedoms, Section 15(1), Equality before and under law and equal protection and benefit of law:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Canadian Charter of Rights and Freedoms, Section 1, Rights and freedoms in Canada:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Court upheld the Divisional Court’s finding that the effective referral policies infringed the physicians’ freedom of religion under s. 2(a). The Court found that it was clear that faith is central to the identities of the appellants and that they sincerely believed that compliance with the policies would be sinful. The Court upheld the Divisional Court’s finding that the interference was neither trivial nor insubstantial because the burden of complying with these policies for objecting physicians significantly goes against their religious beliefs. In agreement with the Divisional Court, the Court reasoned that it was unnecessary to consider freedom of conscience.
The Court upheld the Divisional Court’s finding that the effective referral policies did not infringe the appellants’ s. 15(1) equality rights. The Court agreed that the policies did not impose burdens that had the effect of furthering a disadvantage on religious physicians. The Court reasoned that the policies were the result of an attempt by the College to balance equitable access to health care with physicians’ religious beliefs, and provided an appropriate balance for many physicians. Those who disagreed with the policies could practice in areas of medicine where issues of religious faith were less likely to arise.
The Court held that although the policies infringed s. 2(a), they are ‘reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’ and were therefore justified under s. 1 of the Charter. In doing so, the Court applied the Oakes test. The Court found that the regulatory policies were governmental in nature and were therefore “prescribed by law”. The Court further agreed with the Divisional Court that the purpose of the effective referral requirements was to facilitate equitable access to health care services in a system where physicians have a fiduciary duty to put their patient’s interests above their own. This was a sufficiently pressing and substantial objective. Finally, the Court applied the proportionality analysis of the Oakes test. The Court concluded that there was a rational connection between the means of the policies and their objective because the requirements to refer patients promoted equitable patient access to health care. The Court further held that the respondent had discharged its onus of proving the effective referral requirements were minimally impairing on the appellants’ religious freedom. The Court reasoned that if alternative models were adopted, vulnerable patients would experience delay in medical care, along with shame, and stigma and therefore equitable access to health care would be impaired. Additionally, the alternative “generalized information” model would place the burden on the patient to self-refer. The alternatives were therefore not viable options. Finally, the Court held that there was a proportionate balance between the salutary and deleterious effects of the effective referral requirements; the referral requirements balanced the physicians’ Charter protected religious freedom and enhanced equitable access to health care. While there were burdens and costs felt by the objecting physicians, the referral provided options for physicians with religious objections, and those who still objected could focus their practice in areas that do not engage in religious issues. The court emphasized that the medical profession focuses on the public interest, and the referrals represented a compromise between the physicians’ religious freedom and the patients’ right to access health care.

Para 106-107: “In my view, the Divisional Court did not err in articulating the purpose of the effective referral requirements […] this purpose was a pressing and substantial objective for the purpose of the Oakes analysis […] “the evidence in the record establishes a real risk of a deprivation of equitable access to health care, particularly on the part of the more vulnerable members of our society, in the absence of the effective referral requirements of the Policies.””

Para 160: “On the basis of the evidence before the Divisional Court, the findings of the Divisional Court, the fresh evidence adduced in this court and the submissions of the parties and the interveners, I am satisfied that the alternatives identified by the appellants are fatally flawed. While arguably less impairing of their rights, they are focused on their rights and not on the objective of the effective referral requirements or the interests of vulnerable patients. The evidence shows that the appellants' "generalized information" model, like other "self-referral" models, will impair equitable access to health care rather than promote it. It will impair equitable access to health care because it will 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 is just not adequate.”
Para 187: “The practice of a profession devoted to service of the public necessarily gives rise to moral and ethical choices. The issues raised in this proceeding present difficult choices for religious physicians who object to the Policies, but they do have choices. While the solution is not a perfect one for some physicians, such as the individual appellants, it is not a perfect one for their patients either. They will lose the personal support of their physicians at a time when they are most vulnerable. […] The default expectation is that the physician is to personally provide their patient with all clinically appropriate services or to provide a formal referral. Patients expect that their physicians will do so. However, the Policies do not require this. They represent a compromise. They strike a reasonable balance between patients' interests and physicians' Charter-protected religious freedom.”