On January 21-22, 2019 the Ontario Court of Appeal heard the matter of Christian Medical and Dental Society et al v College of Physicians and Surgeons of Ontario. The case involves a constitutional challenge to the respondent College’s policies on medical assistance in dying (MAID) and human rights obligations. The policies require that doctors who are unable to directly perform controversial procedures (such as euthanasia/assisted suicide and abortion) due to conscientious objection must nevertheless facilitate such procedures by taking positive steps to provide an “effective referral” to a willing and available physician. The Policies were upheld by the Divisional Court in a decision issued last year.
At the appeal, the appellants (the Christian Medical and Dental Society and a number of other physicians’ groups and individual health care professionals) argued that the policies violated physicians’ rights under the Charter of Rights and Freedoms, and that other, less intrusive options were available to facilitate patient access to these procedures. The College argued that the effective referral requirement represented a proportionate balancing between the rights of patients and physicians, and that those who choose to enter a regulated profession must be prepared to accept obligations such as the Policies, as conditions attached to the privilege of practicing medicine.
Christian Legal Fellowship, the Evangelical Fellowship of Canada, and the Assembly of Catholic Bishops of Ontario intervened as a coalition to serve as friends of the court in support of the right to religious equality in health care. The coalition was represented by Deina Warren, Derek Ross, and Sarah Mix-Ross. The coalition’s written arguments (factum) can be found here. Below are the podium notes which formed the basis for the oral submissions presented by Deina Warren on behalf of the coalition to the Court of Appeal on January 22. The court has reserved its decision.
Assisted suicide, abortion, ethics, religion. None of these are simple issues and all of them are at play in this appeal. It is unlikely that any two people in this courtroom would see eye to eye on every one of these matters. This freedom to disagree is a good thing.
And yet the policies at the heart of this appeal attempt to restrict those differing perspectives amongst doctors in a way that unjustifiably violates the Charter.
We agree with the submissions of the appellants on freedom of religion and conscience, but our focus today will be on section 15 [equality based on religion].
Specifically, we want to first highlight the nature of religious identity, second describe the violation, and third raise key societal benefits that are gained when doctors’ religious equality is accommodated.
1. The Nature of Religious Identity
The first characteristic is that section 15 religious equality is distinct from section 2
Perhaps that is self-evident, but religious equality is often sidelined or subsumed into religious freedom in our jurisprudence. This case presents a much-needed opportunity to affirm the independent nature and content of religious equality.
While sections 2 and 15 work together to create what Professor Bruce Ryder describes as “equal religious citizenship”, they are distinct. Basic principles of statutory interpretation tell us that the dual protection for religion is not haphazard or accidental. It highlights the fact that religion is more than a “freedom”. It is a core aspect of identity and a source of dignity, which is rooted in its immutability.
This brings us to the second characteristic, that religion is an immutable, all-encompassing personal characteristic...
…like all enumerated grounds. In other words, it is unchangeable, and where one is coerced to change or suppress religion, it is only “at unacceptable cost to personal identity” [Corbiere v Canada,  2 SCR 203, at para 13].
Religious identity - and its inseparable convictions - can no more be supressed than any other section 15 ground such as race, sex, or age. Nor would a suspension of individual identity - even if “only temporary” - be expected of any other immutable characteristic. The government has no legitimate interest in expecting someone to disavow their religion to receive equal treatment or opportunities, as per Justices McLachlin and Bastarache in Corbiere.
The third characteristic is that doctors have religious identities too!
Religion is an integral part of each person’s identity and doctors are no exception. Faith guides all of their conduct and defines their morally-informed ethical framework, [Mouvement laique Quebecois v Saguenay (City),2015 SCC 16, at para 73].
Clinical decisions such as whether to prescribe a particular drug, recommend a procedure, or provide a referral all contain an ethical component [Flora v Ontario Health Insurance Plan, 2008 ONCA 538, at paras 73-75].
These are not “personal” decisions, but the exercise of professional judgment which is inherently holistic. It integrates clinical experience, education, and a morally-informed ethical framework.
These are each critical parts of judgment, the “religious” element of which cannot and ought not be excised. Rather, all ethical decisions are informed by worldview, moral philosophy or religious beliefs. This type of integration is foundational to a professional's integrity. Integrity, in turn, is a fundamental element for all professional relationships – doctors, lawyers and other professionals too.
Section 15 gives constitutional voice - and protection - to this integrated identity for religious doctors. It protects their ability to remain true to that identity. It provides the necessary scope for them to practice in accordance with their religiously-informed ethical principles. And it affirms that religious identity is of equal value and worth.
2. The Policies do the exact opposite, unjustifiably limiting religious equality, our second key point.
Mandating referral compels doctors to either ‘live a lie and sacrifice deeply important aspects of their identity or face the prospect of disciplinary action’ [Law Society of British Columbia v Trinity Western University, 2018 SCC 32, at para 96; CMDS v CPSO, 2018 ONSC 579, at paras 30, 64].
Religious physicians are thus faced with an impossible choice: comply and deny religious identity or be true and excluded from meaningful employment. The reality is that religious doctors like the Appellants will be deterred from practice in Ontario because of the Policies [Law Society of British Columbia v Trinity Western University, 2018 SCC 32, at para 93].
Employment is “vital to one's livelihood and self-worth” and should be “equally accessible” [Lavoie v Canada, 2002 SCC 23, at para 52]. The Policies in this case exact “too high a price on persons wishing to practice” by depriving them of “the ‘right’ to pursue their calling”, as per Justice LaForest in Andrews [Andrews v Law Society of British Columbia,  1 SCR 143, at 183]. As the Supreme Court has recently affirmed in the context of the legal profession, when one group has fewer opportunities relative to others, it undermines true equality of access to, in this case, the medical profession [Law Society of British Columbia v Trinity Western University, 2018 SCC 32, at para 95].
The suggestion that doctors could “avoid discrimination by modifying their behaviour does not negate the discriminatory effect”; the very act of forcing some people to make such a choice about their identity violates human dignity and is therefore inherently discriminatory [Quebec v A, 2013 SCC 5, at para 337].
Finally, even if doctors have been assigned a “gatekeeping” function it does not exclude them equal protection under the law. As Justices Simmons and LaForme stated in the context of medical marijuana, doctors “remain bound by their own ethics and codes of conduct” and per Justice Doherty in the same decision, “the exercise of individual medical judgment” is an inherent component of the health care delivery system chosen by the province [R v Mernagh, 2013 ONCA 67, at paras 88, 138].
In Andrews, the Supreme Court held that rules barring an entire class of people from certain forms of employment on the grounds of personal characteristics violate equality rights. The same principle applies here: the Policies exclude religious physicians from direct patient-care; in other words, from the practice of medicine. This serves to undermine, not promote, the public good [Andrews v Law Society of British Columbia,  1 SCR 143, at 151].
In sum, the Policies impose discriminatory disadvantage in the following ways:
A. Andrews imposed a temporary delay to enter the legal profession; these Policies permanently limit a vast swath of medical practice, arguably all fields with patient interaction;
B. By suggesting conflict arising from conscience objection is a result of the doctors’ “choice” they violate human dignity;
C. Ontario Medical Association’s submissions clearly articulate the difficulty of doctors changing scope of practice or specialty;
D. Spectre of discipline, as the Policies are intended to have normative effect;
E. Religious doctors have fewer opportunities and unequal access to the medical profession;
F. The burdens described by the College as being “minimally impairing” of section 2 such as the obligation to rearrange practice structures or hire staff based on belief (i.e. lack of conscientious objection) are precisely the types of burdens section 15 seeks to eradicate.
3. Protecting conscientious practice and religious equality, on the other hand, DO promote the public good, our third and final point.
We have focused on section 15 today, but submit that these ‘public good/interest’ factors are relevant to section 1 proportionality for both sections 15 and 2.
First, a diverse public is best served by a diverse profession, religious diversity included [Law Society of British Columbia v Trinity Western University, 2018 SCC 32, at paras 40-43].
The public is not a homogeneous, monolithic, a-religious mass. As Justice Smith in Carter held, “thoughtful and well-motivated people can and have come to different conclusions about whether physician-assisted death can be ethically justifiable”. Reasonable people disagree about assisted suicide as a medical solution. Similarly, reasonable doctors disagree about whether their conscience prohibits or permits them to purposefully end patients’ lives [Carter v Canada, 2012 BCSC 886, at para 343].
The state must respect these ethical differences, not seek to extinguish them. This means CPSO must accommodate doctors with different ethical convictions. And this means diversity is promoted and patients can have doctors whose ethical principles reflect their own [Loyola High School v Quebec (AG), 2015 SCC 12, at para 43].
A second, and related consideration, is that equality leads to enhanced patient care, but we’ll begin with what patient care is not.
Patient care is not enhanced when doctors are obliged to provide “health care” they believe is not in the patients’ best interest. This suggestion is, at best, dubious.
Patient centered care also cannot mean acquiescing to all patient demands, or as we heard yesterday that a doctor who “gives you what you want” is the best model of care. This is the essence of instrumentalizing or automating medicine, to the detriment of patients.
Patient centered care does mean ethical care. Ethical care requires the exercise of judgment. And exercising judgment is a nuanced process taking into account the entirety of the physician’s experience, knowledge, and understanding. This necessarily includes ethics and morality, religiously-informed or otherwise.
The need to protect professional judgment and conscientious objection is brought into greater relief when MAID, a criminal offence prior to Carter, is already being examined with a view to expansion. In particular, for mature minors, mental illness and by advance directive.
The recent Canadian study on potential expansion underscores that doctors come to a variety of ethical conclusions on the issues – this independent medical judgment allows doctors to conclude they cannot participate in such a scheme as a whole. The state may expand eligibility and make some – or all – of these legal but that does not, and cannot, bind a doctor’s conscience to agree. The actions “may be legal but not necessarily ethical” [R v Mernagh, 2013 ONCA 67, para 138; Carter v Canada, 2012 BCSC 886, at para 173].
Doctors such as these, with conscientious objections, are not outliers to be coerced into moral conformity; rather, they provide an important check, an alternative, an opportunity to question assumptions about proposed treatment - or in this case, death - of a patient. This is in the public interest and enhances the public good.
Rejecting this as a component of religious identity and equality begs the question: if religious equality is incapable of protecting the most basic conviction that doctors ought not kill patients, what will it protect?
Subject to any questions, those are our submissions. Thank you.