Another chapter in the continuing saga of medical assistance in dying (“MAID”) was completed on January 31, 2018 when the Divisional Court of the Ontario Superior Court of Justice ruled on the constitutionality of the “Effective Referral Provisions” of the Human Rights Policy and MAID Policy of the College of Physicians and Surgeons of Ontario (“CPSO”). (In this blog post, I am focussed on the MAID Policy but the judgment refers to the Policies.) The Effective Referral Provisions require physicians who are unwilling to provide, amongst other matters, MAID to their patients, on moral or religious grounds to provide an effective referral to another health care provider. The Christian Medical and Dental Society of Canada and the Canadian Federation of Catholic Physicians’ Societies, and Canadian Physicians for Life, along with a number of individual “objecting” physicians had challenged the Effective Referral Policy on the basis that the Policy violated their freedom of religion and conscience protected by s. 2(a) of the Charter and their right to equality protected by s. 15. Justice Wilton-Siegel, (Justices Lococo and Matheson concurring) disagreed and dismissed the challenges:  The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579.

The Effective Referral Provisions of the MAID Policy were created in the aftermath of the Carter v. Canada, 2015 SCC 5 decision of the Supreme Court of Canada which found provisions of the Criminal Code that prohibited assisted suicide to be unconstitutional. The CPSO established a working group to deal with MAID in September 2015. In December 2015, the CPSO then released a draft document entitled “Interim Guidance on Physician-Assisted Death”, which document contained provisions requiring “effective referrals”. This provision was ultimately adopted by the CPSO and is referred to in the judgment as the “Effective Referral Provision of the MAID Policy”. The Effective Referral Provision of the MAID Policy states:

Where a physician declines to provide medical assistance in dying for reasons of conscience or religion, the physician must not abandon the patient. An effective referral must be provided. An effective referral means a referral made in good faith, to an non-objecting physician, nurse-practitioner or agency. The referral must be made in a timely manner to allow the patient to access medical assistance in dying. Patients must not be exposed to adverse clinical outcomes due to delayed referrals.

Justice Wilton-Siegel found that, on a prima facie basis, the Effective Referral Provisions violated the applicants’ freedom of religion. In so doing, the learned justice followed the recent decision of the Supreme Court in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resources Operations), 2017 SCC 54 and specifically, para. 68 where that Court stated:

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 a 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.

(Parenthetically, I find it interesting how an aboriginal rights case informs a freedom of religion case and vice versa. In these constitutional cases, the principles know no “area of law” boundaries and there is a lot of cross-pollination.)

Much of Justice Wilton-Siegel’s judgment focuses on the question as to whether the infringement is “trivial” or “insubstantial”. The Reasons outline why the applicants considered the infringement to be far from trivial or insubstantial:

[98] The Individual Applicant s say that compliance with the Policies entails a number of costs or burdens upon them which are neither “trivial” nor “insubstantial”. They say that they live and work every day in the fear that, as a consequence of a patient’s circumstances, they may face discipline by the CPSO for refusing to comply with the Policies or may have to leave the practice of medicine in Ontario.

The learned justice rejected all of the arguments made by the CPSO that the costs and burdens are trivial or insubstantial, stating that “[t]he effect of the Policies is that at least some of the Individual Applicants are not free to practice medicine in accordance with their religious beliefs or their conscience” [para. 114]. Having found a prima facie breach of s. 2(b)’s protection of freedom of religion, Justice Wilton-Siegel declined to address the issue as to whether there was a similar violation of the applicants’ freedom of conscience.

While little attention was paid in oral argument to the claim that the Effective Referral Provisions also violated s. 15 of the Charter, Justice Wilton-Siegel nonetheless reviewed that claim and found that there was no prima facie violation of the equality right. He stated at paras. 133 and 134:

[133] In summary, in my view, the Applicants’ reliance on the resulting imposition of costs or burdens on the Individual Applicants that they say are not borne by physicians who do not object to particular medical procedures on religious grounds evidence the reality that the Applicants’ claim is not properly a claim of discrimination under section 15(1). Fundamentally, it is a claim to be free to practice medicine unfettered and in accordance with their religious practices, not a claim to be free from religious discrimination. It is therefore a claim that their right of religious freedom has bee infringed.

[134] Accordingly, the Applicants’ claim that the effective referral requirements of the Policies contravene section 15(1) of the Charter is dismissed.

The learned justice then analysed the question of justification of the prima facie breach of the Applicants’ freedom of religion. He found that the Provisions in question established limits that were “prescribed by law” [para. 138] and that their objectives were of sufficient importance to merit overriding the constitutionally protected rights [para. 142]. In this regard, he clarified what he understood to be the purposes of the Policies.

[146] I understand the essential purpose of the effective referral requirements of the Policies to be the facilitation of patient access to health care services, and in particular, the facilitation of equitable access to such services….

Justice Wilton-Siegel found the Provisions to be rationally connected to this objective. His analysis of the minimal impairment criterium of the Oakes test involved an extensive review of the CPSO’s Working Group’s report on the referral options. He found that the Provisions fell “within the range of reasonable alternatives” and he observed that some “leeway” should be afforded to the legislator [para. 174] He concluded that the provisions met the minimal impairment criterium. In conducting the “proportionality” analysis, the learned justice noted that there were other rights at play that required balancing – not just those of the Applicants (paras. 193-195):

[193] First, the Applicants argue that the only Charter issues engaged in these proceedings are the rights of freedom of religion of the Individual Applicants and other objecting religious physicians. They suggest that, on this basis, the protection of such rights under s. 2(a) of the Charter should govern the proportionality analysis.

[194] However, the Policies are directed toward ensuring access to health care by patients who request medical procedures or pharmaceuticals to which religious physicians may object. Access to health care and, in particular, the right of patients to equitable access to health care services available under our publicly funded health care system, are important goals in their own right.

[195] Further, in my view, the latter also engages a Charter right of patients. In making this statement, I do not suggest that the Charter confers a freestanding constitutional right to healthcare: see Chaoulli per Major J at para. 104 which states that it does not. However, I do think that s. 7 of the Charter confers a right to equitable access to such medical services as are legally available in Ontario and provided under the provincial healthcare system. Such a right is a natural corollary of the right of each individual under s. 7 to “life, liberty and security of the person”.

He quoted from Chief Justice McLachlin’s reasons in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 (paras. 92-95) where the learned Chief Justice distinguished between compulsion of religious observance and incidental effects of a law passed for the general good that impose a cost or burden on a religious adherent. He stated at paras. 200 -201:

[200] In the present case, the purpose of the Policies is not to interfere with religious practices. The limitation on the rights of the Individual Applicants is more accurately conceptualized as the result of incidental effects of policies that have their goal access to health care. The issue for the Court is whether the effective referral requirements of the Policies effectively deprive the Individual Applicants and other religious physicians of a meaningful choice, or have the consequence that such parties are left with a stark choice between violating his or her religious belief and disobeying the Policies such that the impugned provisions effectively deprive the Individual Applicants of a meaningful choice.

[201] As discussed above, the goals of access to healthcare, and in particular equitable access to healthcare, are important social goals. These are not goals that should be lightly compromised or sacrificed. I do not accept the Applicants’ position which is, in effect, that there is no basis for finding that a policy of permitting physicians to simply provide patients with information that they need to access services themselves would impede patient access to health services in the absence of evidence of actual circumstances in which this has occurred. In my view, the evidence in the record indicates that the goal of the Policies will be compromised or sacrificed in a variety of circumstances, more often than not involving vulnerable members of our society at the time of requesting services, in the absence of the effective referral requirements of the Policies.

Justice Wilton-Siegel then arrived at his conclusion respecting this balancing of costs and concluded that, while for objecting physicians, there would be a potential for conflict between their religious practices and the Policies, the conflict would result from a conscious choice of the physicians to practice in circumstances in which such a conflict could arise [para. 208]. He determined that, to the extent that there remains a conflict “between patient rights and physician rights” that cannot be reconciled within the Policies, “the former must govern” (para. 210).

There will likely be an appeal from this decision. If I was a betting person, I would wager that this detailed judgment will be upheld. But this is just the first installment of what I anticipate will be many chapters of the book on medical assistance in dying in Canada. When the Liberal government pushed Bill C-14 through notwithstanding the concerns of many that its restrictions on MAID were unconstitutional, I wrote in this blog that the consequence of Bill C-14 was unfortunate:

[S]ome poor soul, like Ms. Carter who would not have qualified under the now passed Bill C-14 because, suffering from spinal stenosis was not at the point where her natural death was reasonably foreseeable, will have to incur the expense and time to apply to court for an order that his or her constitutional rights are being violated. Then the courts will have to go through the whole process all over again, lasting probably another five years, before the Supreme Court will get a chance to determine whether it really meant what it said when it gave Parliament and the provincial legislatures a year to “enact[ ] legislation consistent with the constitutional parameters set out in these reasons“: Carter v. Canada (Attorney General), 2015 SCC 5 at para. 126 [Emphasis added].

Those other cases are in their early days but they are coming. Stay tuned.

I remain

Constitutionally yours,

Arthur Grant