Introduction:

Last fall, our blog reviewed the decision of the Ontario Divisional Court, wherein they decided the constitutionality of two policies implemented by the College of Physicians & Surgeons (CPSO). The two policies were known as the Human Rights Policy and the MAID policy. They require physicians to make active referrals to patients who seek an abortion, reproductive health services or medical assistance in dying. The appellant physicians, however, do not wish to do so based upon their religious beliefs. They would prefer to have no involvement or responsibility in any of these medical services.

The policies did not require the physicians to provide any such care, except in emergencies, but did require them to make a valid referral which is one made in good faith, to a non-objecting, available and accessible physician or another service capable and competent to deliver the care requested. It was this step, the requirement to make the referral, that was being challenged based on their rights to freedom of conscience and religion. Their beliefs were such that the referral itself made them complicit in the actual treatment or acts performed by other physicians.

The appellant physicians were not successful with the Divisional Court. Although the policies were found to infringe their freedom of religion, this effect was held to be justified under section 1 of the Charter as being within reasonable limits. The physicians appealed the decision to the Ontario Court of Appeal (ONCA).

Court of Appeal:

The issues before the ONCA were as follows:

(1)  What is the applicable standard of review and is the Doré/Loyola framework or the Oakes framework applicable to this case?

(2)  Do the effective referral requirements of the Policies infringe the appellants’ s. 2(a) freedom of conscience and religion?

(3)  Do the effective referral requirements of the Policies infringe the appellants’ s. 15(1) equality rights?

(4)  If there is an infringement of the appellants’ Charter rights and/or freedoms, is it justified under s. 1 of the Charter?

Standard of Review:

The physicians agreed with the Divisional Court that the correct standard of review was correctness based on the Oakes framework. The CPSO advanced the reasonableness standard and the Doré/Loyola framework. This decision was one of law, and therefore the ONCA would review it with the correctness standard. In the end, the issue was moot in that the result was unaffected by the standard of review chosen.

Freedom of Conscience and Religion:

There was a consensus that the physician’s beliefs were sincere and that the policies did interfere with those beliefs. The CPSO, however, again took the position that the interference was trivial or insubstantial. The ONCA held it was an interference beyond the superficial. These beliefs were durable and of such magnitude that the act of referring made them complicit in the actual treatment.

Section 15(1):

The ONCA agreed with the ONSC and stated:

I would not give effect to the appellants’ submissions, largely for the reasons given by the Divisional Court at paras. 128-31. As the Divisional Court stated, the Policies represent an attempt to balance equitable access to health care with physicians’ religious beliefs. The Policies, as clarified by the Fact Sheet, provide an appropriate balance for many physicians. Physicians who do not regard the procedures set out in the Fact Sheet as acceptable can transition to other areas of medicine in which these issues of faith or conscience are less likely to arise, if at all.

Justification:

This was the central issue in the appeal. As the policies did infringe a protected right, the CPSO had to establish that they, the policies, were a reasonable limitation of those rights. The tests to determine this are those set out by the SCC in Oakes as follows:

  • The Charter-infringing measure must be “prescribed by law” which in the present case was essentially conceded;
  • The objective of the impugned measure must be of sufficient importance to warrant overriding a constitutionally protected right or freedom. The goal of the policies was to provide access to health care. Physicians are the gatekeepers of the publicly funded health care system. The policies were of sufficient importance;
  • The means chosen must be reasonable and demonstrably justified – this is a “form of proportionality test” which will vary in the circumstances, but requires a balancing of the interests of society with the interests of individuals and groups and has three components:
    • (i) the measure must be rationally connected to the objective – i.e., carefully designed to achieve the objective and not arbitrary, unfair or based on irrational considerations
    • (ii) the means chosen should impair the Charter right or freedom as little as possible; and
    • (iii) there must be proportionality between the salutary and deleterious effects of the measure.

The proportionality test examines whether the means are designed to further the objective. The ONCA agreed with the Divisional Court that they did do so, and promoted equitable access to health care.

The CPSO then had to show that the policies infringed religious freedom as little as reasonably possible. The physicians felt that there was a more straightforward way to achieve the same goal through information models.  The ONCA disagreed. The issues of concern are all very personal matters to the patients seeking such types of care. The requests are also often time sensitive. Actual harm does not need to be proven by the CPSO. Perceived harm was apparent and enough in the circumstances.

As for a lesser impairing means, the ONCA concluded that the Divisional Court was correct in concluding that the policies were the appropriate and best means of ensuring access to these services.

Conclusion:

  • The affected appellant physicians have now lost their argument twice in Ontario at considerable financial cost;
  • An application to the Supreme Court of Canada is likely to follow.

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 professionalsregulated 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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