Three questions on the forced medical referrals case

14 December 2018

The EFC is intervening in an Ontario appeal case on freedom of conscience that has implications across Canada. The case will be heard Jan. 21-22, 2019. As part of our Three Questions Series, we asked for a quick explanation from a lawyer working on the case with the EFC. Derek Ross is the executive director and general counsel for Christian Legal Fellowship.

Q1. The EFC is part of a joint intervention in this CMDS et al v. College of Physicians and Surgeons of Ontario case. What is the case about?

The case involves a challenge to regulatory policies which require physicians to take “positive action” to help facilitate procedures such as abortion or euthanasia, even if the physician conscientiously objects to the procedure. Physicians who view these procedures as unethical, and never in a patient’s best interests, can not in good conscience participate in such a process. For example, the World Medical Association’s position is that “euthanasia is in conflict with basic ethical principles of medical practice” and it urges physicians to “refrain from participating in euthanasia, even if national law allows it.” For many physicians of faith, these ethical principles are consistent with, and reinforced by, their religious convictions concerning the sanctity of human life, and the inherent and equal dignity and worth of all persons.

Q2. How was it decided by the lower court, and what is at issue on appeal?

Earlier this year, the Ontario Divisional Court accepted that the policies infringe on physicians’ religious freedom, but concluded that the policies were justified to the extent that they helped ensure access to health care services. However, the court’s conclusions were based on what it described as a “reasoned apprehension of harm” – the court accepted that “there is no study or direct evidence that demonstrates that access to health care is, or was, a problem that was caused by physicians objecting on religious or conscientious grounds to the provision of referrals for their patients.”

There are numerous issues raised in the appeal, both by the parties and the nine intervening groups. Among other things, the Court of Appeal will be asked to consider whether a “reasoned apprehension of harm” is sufficient to justify an infringement of Charter rights, and even if it is, whether alternative processes can sufficiently advance the goals of the policies while still accommodating conscientiously-objecting health care professionals (such as a central co-ordination phone service, for example).

Q3. What will be the key contribution in the intervention at the Ontario Court of Appeal by the coalition of the EFC / Christian Legal Fellowship / Assembly of Catholic Bishops of Ontario?

Our coalition has filed a factum which explains why religious accommodation not only respects the human rights of conscientious objectors, but also protects the public interest and advances the common good for society as a whole. One of our key submissions focuses on the notion of ‘religious equality’, which is guaranteed in section 15 of the Charter, and is a separate protection from freedom of religion and freedom of conscience, which are guaranteed in section 2. We explain why religious equality protects the freedom of Canadians to participate fully in public and vocational life without being forced to disavow their religious beliefs and identities. We also explain that state actors have a duty to provide reasonable accommodation for religious minorities adversely affected by a policy or rule (even one that appears to be ‘neutral’). Finally, we explain that ethical considerations form an essential part of - and can not be separated from - professional judgment. If the state can force physicians to remove ethics from their practice, physicians become a mere means to an end, and society loses an important safeguard against potential abuse and harm: independent, professional judgment. This becomes especially important as the federal government is considering whether to expand euthanasia and make it available to minors, patients with mental illness, and patients with dementia. One of the vital questions our coalition asks is, how far will physicians be compelled to act, in violation of their ethics, in those contexts?

We are grateful for the opportunity to participate as a coalition in this appeal, as we did in the court below. We have been granted permission to make oral arguments at the hearing, which takes place January 21-22, 2019.

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