The EFC intervened in an Ontario appeal case on freedom of conscience that has implications across Canada. The case decision, May 15, 2019, was disappointing. As part of our Three Questions Series, we asked for some additional explanation from 
Derek Ross, the executive director and general counsel for Christian Legal Fellowship.
Q1. The EFC and CLF were part of a joint intervention with the Assembly of Catholic Bishops of Ontario in this CMDS et al v. College of Physicians and Surgeons of Ontario case. What were the coalition’s key arguments, and were they addressed in the judgment?
Our coalition encouraged the Court of Appeal to consider not only freedom of religion and conscience protections, but also the guarantee of equality in the Charter of Rights and Freedoms (in section 15). One of the coalition’s core concerns was that physicians not be denied equal access to the medical profession because of their convictions – this case is not only about protecting religious freedom but affording religious minorities equal participation in society.
The Court acknowledged, but did not fully address, these arguments in its judgment, such as our submission that employment is a fundamental social institution which must be equally accessible without religious discrimination (see paragraph 91). We emphasized the latter point because although there may not be a stand-alone right to practise medicine (as the Court later stated), section 15 does support the right to be free from discriminatory barriers to employment, including barriers imposed based on one’s religion.
Q2. Did the decision reflect an understanding of the physicians’ concerns?
The Court did acknowledge that the effective referral requirements interfere with physicians’ freedom of religion in a way that is “neither trivial nor insubstantial.” It went on, however, to conclude that this interference is justified in order to ensure patients’ access to services.
One notion that seems to have been underappreciated is this: conscientiously objecting physicians are motivated by a deep care for their patients, and desire to serve their best interests. This tends to get lost when conscientious objections are framed as personal or religious choices, rather than an exercise of clinically informed, holistic professional judgment.
In the Carter case in 2012, for example, the trial judge acknowledged that “thoughtful and well-motivated people can and have come to different conclusions about whether physician-assisted death can be ethically justifiable” (paragraph 343), including physicians for whom it is “ethically inconceivable” to ever participate in “intentionally ending the life of a patient” (paragraph 310). When physicians are unable to participate in these procedures, it is not to impose their morality on others, but to “do no harm” in accordance with the Hippocratic Oath, and what the World Medical Association describes as “basic ethical principles of medical practice.”
None of these ideas were expressly rejected in the Court’s judgment – the Court limited its analysis to the plaintiffs’ religious objections, and deferred to another day a consideration of “conscience-based objections” such as those of “physicians who would regard the effective referral of patients as equivalent to participating in the medical services at issue and who would object to doing so on the basis of conscience” (paragraph 85).
Q3. Why is it important for groups like ours to intervene in cases like this?
It was encouraging to read the Supreme Court of Canada’s recent affirmation that “interveners play a vital role in our justice system by providing unique perspectives and specialized forms of expertise that assist the court in deciding complex issues that have effects transcending the interests of the particular parties before it.”
The judges’ task is not an easy one, and they carry a heavy burden, especially in cases like this. As a friend of the Court, our role as intervener is to help them better understand the wider implications of a decision, and how it might impact a broader community. It is a privilege for our organizations to participate in these public interest cases, and we are grateful for the opportunity to be heard. Still, there is clearly much more work to be done in order to communicate the core concerns of our communities to Canada’s decisionmakers, and the broader public, in explaining how we can advance the common good together.