by Written on behalf of Wise Health Law October 11, 2018 6 min read

It comes as no surprise that many health care professionals are deeply religious and that they use and follow their faith to guide them in how they practice. It is also no surprise that such convictions might lead to conflict with legislative enactments or policies passed in the public interest. Such was the case in a recent application before the Divisional Court of Ontario.

The Application

Three Canadian religious health care based organizations, the Christian Medical and Dental Society (CMDS), the Canadian Federation of Catholic Physicians’ Societies (CFCPS) and the Canadian Physicians for Life and five individual physicians were the applicants. The College of Physicians and Surgeons of Ontario (CPSO) was the respondent. At issue was the constitutional validity of portions of two CPSO policies entitled “Professional Obligations and Human Rights” and “Medical Assistance in Dying”. The position of the Applicants' was that the policies infringed their freedom of religion under s. 29(a) of the Canadian Charter of Rights and Freedoms and discriminated against them on the basis of religion contrary to s. 15 of the Charter. They sought a judicial determination that the policies were unconstitutional through judicial review.

What they Object to Doing

They consider the following acts sinful and immoral and that they are not by their faith willing or allowed to participate:
  • Providing abortions;
  • Medical assistance in dying;
  • Contraception, fertility treatments, prenatal screening and transgender treatments.

Human Rights Policy

The policy requires physicians who are unwilling to provide medical care on moral or religious grounds to provide a patient needing, or requesting such care, with an effective referral to another health care provider. This has to mean to one who is willing to provide the care. Further, it requires doctors to provide emergency care where it is necessary to prevent imminent harm even where such care conflicts with their religious beliefs.

MAID Policy

This policy requires physicians who will not, for religious reasons, provide a patient with medical assistance in dying, to give an effective referral to a doctor who will assist them.

Authority to Enact the Policies

The policies were created by the CPSO to be of general application. They are what the CPSO expects of physicians. However, neither was adopted under the Regulated Health Practices Act (RHPA) or as a code of practice. They may, however, still support a finding of professional misconduct. The Applicants first took the position that the policies were beyond the authority of the CPSO to enact as they were designed to ensure access to health care which was not part of their statutory objectives set out in the RHPA. This position was not accepted by the court. It held that on either standard of review, correctness or reasonableness, the policies were within the CPSO’s authority to pass.
In my view, the CPSO not only has the authority but is obligated to provide guidance to its members, by policies or otherwise, regarding the manner of compliance with Charter values in their practice of medicine, including the furtherance of equitable access to health care services that are legally available in Ontario.

Constitutional Standard of Review

The parties also disputed the correct standard of review to be used in addressing the constitutionality issues. The Applicants argued for the “correctness” approach with no deference being given to the CPSO’s decision to adopt the policies. The CPSO argued for the use of the “reasonableness” standard with deference being given to its decision-making process. The court decided on the correctness approach used by the Supreme Court of Canada (SCC) in Oakes based on the reasoning of the same court in Dore. They did so because the issues dealt with a legislative enactment of general application and not an administrative decision affecting one or more individuals.

Charter

The Canadian Charter of Rights and Freedomsguarantees 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. Pursuant to the Charter,everyone has fundamental freedoms, including freedom of conscience and religion.
  1. (1) 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. …

Freedom of Religion-s.1 and 2(a)

The court held that the rights of the Applicants were indeed impacted by the two policies. The test to determine the matter comes from the SCC in Syndicate Northcrest v. Amselem as follows:
To establish an infringement of the right to freedom of religion, the claimant must demonstrate (1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and (2) that the impugned state conduct interferes, in a manner that is non trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief: …

Was it a Trivial Infringement?

Not every infringement of religious freedom is offensive to the Charter. Those that are found to be trivial or insubstantial will not be. This is determined by an objective test. The CPSO argued that the policies impact should be considered trivial. The court disagreed primarily on the basis that the solutions offered by the CPSO in their “fact-sheet” did not alleviate the concerns of all affected physicians-primarily those who practiced as sole practitioners. There was then a finding of an infringement of religious freedom.

Discrimination- s.15

In Kahkewistahaw First Nation v. Taypotat, the Supreme Court of Canada (SCC) had determined the test to be as follows:
(1) whether, on its face or in its impact, a law creates a distinction on the basis of an enumerated or analogous ground; and (2) whether the impugned law fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage.
Step 1 of the test was not dealt with as the Applicants were held to have failed to meet the test in step 2. The Applicants claim did not arise from any demeaning stereotype but from a neutral and rationally defensible policy choice. The imposition of costs burdens on the Applicant physicians is not a matter of discrimination but rather one of an infringement of religious freedom.

Is the Infringement of Religious Freedom Justified?

The court held the policies were prescribed by law given the SCC's decision in Greater Vancouver Transportation Authority which held that the Charter may apply to a regulatory entity to the extent that its activities could be said to be governmental. The court also held that the objective of the policies was of sufficient importance as they did address concerns which were pressing and substantial in a free and democratic society-they ensure health services without discrimination.

Are the Means Chosen Reasonable and Demonstrably Justified?

The court found that the effective referral requirements of the policies were rationally connected to the goal of the policies which was to ensure equitable access to health care in Ontario. Secondly, the court found that the policies fell within a range of reasonable alternatives in their attempt to address the religious objections of the physicians while achieving the goal of equitable access to health care. They therefore satisfied the minimum impairment test. Finally, the court assessed the salutatory and deleterious impacts of the effective referral requirements of the policies on the religious practices of the physicians and assessed them to be proportionate. The policies were therefore judged constitutionally valid and justified.

Conclusion

There is a strong chance that the policies and this result will be appealed and challenged again in the Ontario Court of Appeal and possibly the SCC. We will continue to follow developments in this matter and will provide updates as they become available. In the meantime, if you have questions about this case, MAID, or any other related issue, contact the knowledgeable health law lawyers at Wise Health Law. We provide exceptional guidance on health law matters to regulated health professionals, regulated health professional associations, public hospitals, and other health-care organizations across the province. We monitor trends and developments in health so that we can provide consistently forward-thinking legal and risk management advice to our clients. Contact us online, or at 416-915-4234 for a consultation.


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