Christian Medical and Dental Society executive director Deacon Larry Worthen is “cautiously optimistic” after arguing against ‘effective referral’ in Ontario Superior Court of Justice June 13-15. Photo by Michael Swan

Ontario conscience rights case now in judges’ hands

  • June 16, 2017

TORONTO – Three days and nearly two dozen lawyers arguing the broad principles and technical details of constitutional law before a three-judge has panel left Christian Medical and Dental Society executive director Deacon Larry Worthen “cautiously optimistic.”

“The court certainly heard our arguments,” Worthen told The Catholic Register on June 15 outside the courtroom as lawyers shook hands and dispersed in the hallways of historic Osgoode Hall.

The trial before the Ontario Court of Justice was likely the first leg in a battle all the combatants expect will end in at the Supreme Court of Canada. Five dissenting Christian doctors who all object to abortion, chemical birth control, petri-dish human fertilization and assisted suicide asked the court to strike down a 2015 College of Physicians and Surgeons of Ontario rule that forces them to provide an “effective referral” for services they reject on the basis of their religious faith or conscience.

The judges reserved their decision without committing themselves to a deadline for what promises to be a lengthy written decision.

“If we lose, we’ve lost the ability to practice medicine in accord with our Christian principles,” said Worthen. “Christian physicians will be practicing with a cloud over their heads.”

Practicing medicine is a privilege and not a right, argued CPSO lawyer Vicki White.

“They chose to enter a profession where their professional obligations are bound to conflict with their personal religious beliefs,” she said.

While the dissenting doctors may feel their Charter rights to freedom of religion and freedom of conscience have been violated by the college’s policy, the college’s responsibility to protect the public and ensure access to legal medical services outweighs the doctors’ feelings, White said. Leaving vulnerable patients on their own to figure out how and where to obtain an abortion, receive a prescription for birth control pills or get assess for medical assistance in dying is bound to leave them without the care they believe is necessary, said White.

“Ontario’s health care system is opaque, complicated and difficult even for the most resourceful of citizens,” White said. “... It is the duty of the physician to advocate for that patient.”

While the college’s forced referral policy may violate religious freedoms in a “trivial and insubstantial” way, the policy balances such harm to doctors against the needs of vulnerable patients, said the Attorney General of Ontario’s lawyer Josh Hunter.

“These are profoundly important and deeply personal choices for patients,” Hunter said. “The public interest requires that doctors take the minimal step to structure their practices such that vulnerable patients are not left to navigate the health care system without the help of their trusted doctor.”

Much of the CPSO and the provincial government’s argument rested on a one-page “fact sheet” that outlined various ways in which doctors could meet the effective referral standard. Not all of them included a formal, written referral.

But the alternative methods outlined in the CPSO fact sheet are either vague or impractical for many physicians, argued Christian Medical and Dental Society lawyer Albertos Polizogopoulos.

Whatever fuzzy language the college may substitute for referral — “connect a patient with another physician” or “directly matched with a non-objecting physician” — what the college is requiring of doctors constitutes “material co-operation with evil,” Polizogopoulos said.

“We don’t challenge that the college has the right to enact policy,” he said. “We challenge that they cannot exceed their authority and they cannot violate the Charter.”

A fact sheet posted to the CPSO website more than a year after the policy was enacted and well after a legal challenge to the policy was launched does not get the College of Physicians and Surgeons off the hook for any direct violation of the freedom of religion and freedom of conscience guarantees in the Charter of Rights and Freedoms, argued Polizogopoulos.

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

The range of religious objections to the policy represented in court included Protestant Evangelical Christians, Catholics and Jews.

B’Nai Brith of Canada League for Human Rights lawyer Gregory Sidlofsky pointed out that suicide is a sin for all Jews, and that to help someone commit a sin, as in assisted suicide, is no less sinful.

“If an act is wrong, irrespective of what it is, one cannot assign another person to do it,” Sidlofsky said.

The CPSO policy puts doctors of faith “in an impossible position, having to choose between their profession and their religion,” said Sidlofsky. “That choice is entirely avoidable.”

Given that other jurisdictions where assisted suicide is legal have not required doctors to be part of the process by writing referrals, “there is no explicable reason why the college in this province is requiring this,” said Sidlofsky. “It is not a trivial or insubstantial incursion (of their Charter rights).”

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