In its 2015 ruling in Carter v. Canada, the Supreme Court of Canada struck down the Criminal Code prohibition against assisted suicide as an unjustified violation of the Charter of Rights and Freedoms. More specifically, the Supreme Court found that the prohibition infringed the Charter’s guarantee to life, liberty and security of the person to the extent that it denied assisted suicide to consenting and competent adults who suffer from an intolerable “grievous and irremediable” medical condition.

Almost four years later, questions still remain concerning the extent to which the Charter guarantees a right to assisted suicide.

For a timely example, look no further than the Charter challenge that has been brought forward by the Christian Medical and Dental Society (CMDS) against the College of Physicians and Surgeons of Ontario. The case arose when the College introduced several policies that require Ontario physicians to provide “effective referrals” for assisted suicide if they are unwilling to deliver these procedures as part of their practice.

Along with several other co-litigants, the CMDS claims that these policies will violate the freedom of conscience and religion of many doctors by forcing them to participate in a regime that they believe will make them morally complicit in murder. The Ontario Court of Appeal heard oral arguments on appeal in January after the Ontario Divisional Court ruled against the CMDS last year.

The Supreme Court stated in Carter that nothing in its declaration “would compel physicians to provide assistance in dying.” It also emphasized, however, that “the Charter rights of patients and physicians will need to be reconciled” as governments implement their assisted suicide regimes. On this basis, the College claims that effective referrals are necessary in order to promote equitable access to legally available health services such as assisted suicide.

Yet in its ruling last year, the Divisional Court found that “there is no study or direct evidence that demonstrates that access to health care is, or was, a problem that was caused by physicians objecting on religious or conscientious grounds to the provision of referrals for their patients.”

In spite of this lack of evidence in the College’s favour, the Divisional Court found that deference was owed to the College when it comes to questions of access to health care. Since physicians operate within a publicly funded health care system, the court concluded, it was reasonable for the College to require the CMDS and its members “to place the interests of their patients ahead of their own personal interests in the event of a conflict.”

Some will no doubt have trouble understanding the concerns raised by the CMDS. After all, the College isn’t forcing any of these doctors to actually administer assisted suicide: effective referrals require only that physicians assist their patients in finding and transferring care to another medical professional when they are unable or unwilling to administer these procedures themselves. What’s the big deal?

These kinds of objections miss the point of what’s really at issue in this case. We shouldn’t be asking whether the beliefs of the CMDS and its members are reasonable. Within the diversity of the Canadian medical profession, physicians are going to come to vastly different conclusions about what their ethical obligations regarding the sanctity of life entail.

Rather, under the Charter’s guarantee of freedom of conscience and religion, our focus should instead be on whether the College’s interference with the sincere beliefs of conscientiously objecting doctors is proportionate with its objective of maintaining equitable access to health services. Indeed, to the extent that our concern in this case is about the Charter value of equality, we ought to be just as concerned over how the College’s policies could have the very real effect of creating barriers for religious minorities in the medical profession.

As the Divisional Court itself acknowledged in its ruling, conscientiously objecting physicians who do not practice in an institutional setting that allows them to transfer effective referral requests to another medical professional may be compelled to “change…the nature of their practice if they intend to continue practicing medicine in Ontario.” For many of the religious doctors represented by the CMDS, this raises the prospect that the College’s effective referral requirement will force them to choose between their convictions and their professional calling.

Although health care is a publicly funded service in Canada, medical professionals are not government actors. The responsibility for maintaining equitable access to health care, while an important objective, ultimately belongs to the government, not individual physicians. Regardless of how the Court of Appeal rules in this case, the College should take a hard look at how its effective referral policies may be inadvertently keeping protected minority groups out of the medical profession.

Photo: Shutterstock/By Blue Planet Studio

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Kristopher Kinsinger
Kristopher Kinsinger is an Ontario lawyer and LLM candidate at McGill University’s Faculty of Law. He currently serves on the board of directors of Christian Legal Fellowship and as the secretary of the Canadian Bar Association’s Constitutional and Human Rights Section.

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