not have the skills, abilities or resources to navigate their own
way through a vast and complicated health care system.
[122] The evidence also establishes that decisions concerning
many of these procedures are time-sensitive — obviously so in the
case of MAiD, abortion and emergency contraception. Delay in
accessing these procedures can prevent access to them altogether.
[123] Abortion and MAiD carry the stigmatizing legacy of
several centuries of criminalization grounded in religious and
secular morality. The evidence discloses that this stigmatization is
still evident in some quarters of the medical community and that
it can serve, unintentionally or not, as an obstacle, or an outright
barrier to these procedures.
[124] The vulnerable patients I have described above, seeking
MAiD, abortion, contraception and other aspects of sexual health
care, turn to their family physicians for advice, care and, if necessary, medical treatment or intervention. Given the importance
of family physicians as “gatekeepers” and “patient navigators” in
the health care system, there is compelling evidence that patients
will suffer harm in the absence of an effective referral.
[125] I do not agree that Multani supports the appellants’
argument that “actual harm” must be demonstrated. Justice
Charron, who spoke for the majority, did not require that harm
itself be conclusively established. What she said, at para. 67, was:
“I agree that it is not necessary to wait for harm to be done before
acting, but the existence of concerns relating to safety must be
unequivocally established for the infringement of a constitutional
right to be justified” (emphasis added). In this case, concerns
relating to the safety of vulnerable patients as a result of
deprivation of access to health care services were, and have been,
conclusively established. The next issue is whether those
concerns could have been addressed by less impairing means.
Less impairing means
[126] In the Divisional Court, the appellants asserted that
there were less impairing means of achieving the objective of the
effective referral requirements. These included maintaining
a public information line for information regarding particular
procedures or pharmaceuticals to which physicians object, and
requiring physicians to provide information to patients about how to
access abortion and contraception and establishing a coordination
service or registry for MAiD, as was ultimately done through the
CCS. They also pointed to policies of regulators in other provinces,
which they claimed were less impairing because they do not
require objecting physicians to provide a direct, individualized
referral. I will discuss the latter argument in the next section.
