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The Christian Medical and Dental Society of Canada is in Ontario Superior Court of Justice June 13-15 challenging the College of Physicians and Surgeons of Ontario over its “effective referral” policy. Photo by Michael Swan

Ontario conscience rights case goes to court

  • June 13, 2017

TORONTO – In historic Osgoode Hall, 17 lawyers along with eight banker boxes of documents were arrayed three benches deep in front of Justice Herman J. Wilton-Siegel, Justice Richard A. Lococo and Justice Wendy W. Matheson before lawyer Albertos Polizogopoulos made his opening arguments on behalf of the Christian Medical and Dental Society of Canada and in favour of the Charter right of doctors to practice medicine according to their conscience.

The CMDS, supported by the Canadian Federation of Catholic Physicians Societies, Canadian Physicians for Life and the Catholic Civil Rights League, is in Ontario Superior Court of Justice June 13-15 challenging the College of Physicians and Surgeons of Ontario over its “effective referral” policy. The policy forces doctors who object to abortion, birth control and assisted suicide to write an “effective referral” for the services to a willing and available doctor. Intervening on the side of the provincial regulatory body governing the practice of medicine is the Attorney General of Ontario.

After handing the judges a single binder containing more than 1,000 pages of legal references, precedents and arguments, Polizogopoulos argued for simplicity.

“I’m a simple guy and I’m going to keep it simple,” Polizogopoulos said. “(The arguments in this case) are about whether the government can compel people to do things that they think are wrong…. The evidence is clear that the applicants believe the policy compels them to do something they believe is a sin, is wrong.”

Polizogopoulos anticipates lawyers for the College of Physicians and Surgeons (CPSO) will argue there are nine different ways of fulfilling the effective referral requirement and that an effective referral doesn’t involve the referring doctor in the actual delivery of assisted dying, abortion or chemical birth control. But the college’s own description of the referral as “effective” negates that argument, Polizogopoulos said.

“The expectation and the obligation of the physician is to facilitate access, and that’s the problem,” he said.

The bearded, energetic lawyer invoked principles of criminal law to make his case.

“If, during the break, someone comes up to me and says I’m looking to buy cocaine and I sell them cocaine, I’ve broken the law. We recognize that. But if I say, ‘Actually, I don’t sell cocaine but go see Diana’ and she sells him cocaine, I’ve facilitated that. And that’s a crime.”

Religiously, the idea that an effective referral involves a doctor in whatever follows from that referral, is grounded in the Gospel of Mark, said Polizogopoulos.

“If any of you put a stumbling block before one of these little ones who believe in me, it would be better for you if a great millstone were hung around your neck and you were thrown into the sea,” says Jesus in Mark 9:42.

For Catholics, the obligation to oppose laws which compel them to facilitate an abortion or other violations of Catholic teaching on the sacredness of life is laid out in Pope John Paul II’s 1995 encyclical Evangelium Vitae (The Gospel of Life), said Polizogopoulos.

“Abortion and euthanasia are thus crimes which no human law can claim to legitimize,” wrote St. John Paul II. “There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection.”

By telling individual doctors that they must in their practice of medicine ensure access to abortion and assisted suicide – both legal medical procedures in Canada – the CPSO has gone beyond its mandate to regulate individual doctors on behalf of public safety, argued Polizogopoulos. Ensuring access to services is the responsibility of the Ministry of Health.

“That’s is not the College’s job,” said Polizogopoulos.

While admitting that a Charter challenge involving close to two dozen lawyers is a complicated business, Polizogopoulos is correct when he argues for a simple principle at the heart of the case, said Catholic Civil Rights League president Phil Horgan.

“The importance of this case is simple,” Horgan said during the first break from an anticipated three days of arguments.

“For most doctors this is simple in that the impact (of the effective referral policy) engages their Hippocratic oath and that tradition,” said Horgan.

As an objecting nurse watching the proceedings, Helen McGee found Polizogopoulos’s arguments compelling.

“The basic idea of freedom is so important,” she said. “To have the government telling you what’s right….”

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