In January 2018, Ontario’s Divisional Court released its decision in a case called The Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (CanLII). The Divisional Court dismissed a constitutional challenge to the College of Physicians and Surgeons of Ontario’s (“CPSO”) policies, which require physicians to provide patients with an effective referral to another health care provider when the physician is unwilling to provide elements of care on moral or religious grounds (the “Mandatory Referral Policy”). The Christian Medical and Dental Society of Canada (“CMDSC”) argued that these policies violate physicians’ freedom of religion and conscience, which is protected by section 2(a) of the Canadian Charter of Rights and Freedoms.
The Divisional Court’s decision is under appeal. The Court of Appeal for Ontario is set to hear argument in late January 2019.
The Divisional Court found that the Mandatory Referral Policy violated physician’s freedom of religion and that the violation was demonstrably justified as reasonable limit in a free and democratic society. An important aspect of this situation was not addressed in the Divisional Court’s decision. It is questionable whether the physicians’ refusal to refer is protected by the Charter.
In a publicly funded healthcare system, a doctor’s refusal to refer a patient to receive a legally available medical treatment that the patient is eligible for violates that patient’s right to autonomy and dignity. These refusals to refer are not protected by the physicians’ freedom of conscience and religion. In fact, a refusal to refer violates the patient’s right to freedom of religion, because it imposes the doctor’s religious and moral convictions onto the patient.
Freedom of religion protects sincerely held beliefs and manifestations of belief through practice. To establish an infringement of the freedom of religion, the CMDSC must demonstrate that the Mandatory Referral Policy interferes with a physician’s ability to act in accordance with their beliefs or practices in a manner that is non-trivial or not insubstantial.
According to CMDSC, some physicians who believe that abortion and medically-assisted death are immoral or sinful believe that they cannot provide those services and that referring a patient to a physician who will provide those services constitutes participation or complicity in the provision of sinful or immoral procedures. According to the Divisional Court’s decision, the Mandatory Referral Policy interferes with these beliefs in a non-trivial way. The Court found that failing to follow the Mandatory Referral Policy would put doctors at risk of professional discipline, and would therefore prevent physicians from acting in accordance with their beliefs.
The problem with this finding is that it is tantamount to finding that publicly funded doctors have the right to nullify patient’s constitutional rights to access medical care in the name of doctors’ freedom of religion. This is unacceptable in a free and democratic society that acknowledges, and even embraces, a plurality of ethical, moral, and religious views.
In essence, the CMDSC seeks Charter protection to ensure, not just that its member doctors can abide by their religious beliefs, but also that all patients attended by their members also abide by CMDSC’s religious beliefs, whether or not those patients personally share those beliefs.
As Justice Rowe stated in Law Society of British Columbia v Trinity Western University, 2018 SCC 32 (CanLII) the “coercion of nonbelievers is not protected by the Charter” because freedom of religion is premised on the exercise of free will and the absence of constraint (see paragraphs 237-239). While Justice Rowe wrote alone (as in he did not write for a majority of the Supreme Court justices) in Trinity Western, he relied for his authority on the majority decision in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (CanLII) — a case in which the majority held that a freedom of religion claim was not protected by the Charter.
In Ktunaxa, an aboriginal group claimed that a spirit animal inhabited a mountain and if the mountain was developed the spirit animal would leave forever. In that case, finding that freedom of religion protected the spiritual animal would have been tantamount to finding that the non-believing public was restrained by these beliefs and could not access the mountain. The Christian Medical and Dental Society of Canada case is equivalent, and the Court of Appeal for Ontario should therefore come to the same conclusion and hold that freedom of religion is not violated by ensuring that patients can have meaningful access to the medical services that they deem necessary for their own well-being.