practise in a single-payer, publicly-funded health care system,
which is structured around patient-centred care. In the case of
a conflict, the interests of patients come first, and physicians have
a duty not to abandon their patients.
 Turning to the balancing, the Divisional Court noted the
evidence that the goals of the Policies will be compromised if
patients are simply given information and then expected to access
 The Divisional Court described the costs or burdens on
objecting physicians. It noted that for many Ontario physicians,
referral of a patient for the procedures at issue does not raise
religious or ethical concerns. The concerns of others with religious
objections, including some of the individual appellants, can be
addressed by the options in the Fact Sheet. This is particularly
the case for physicians who practise in a hospital, a clinic or
a family practice group. Thus, the effective referral requirements
are primarily a concern for those who do not practise in such
a setting or those who find the options unacceptable. The principal,
and perhaps the only, means of addressing these concerns would
be to focus their practice in a specialty or sub-specialty that
would not present circumstances in which the Policies would
require an effective referral of patients in respect of medical
services to which they object. While this is not a trivial impact, it
permits an objecting physician to continue to practise medicine
and is less serious than outright exclusion from practice.
 The Divisional Court concluded [at para. 210] that “to
the extent there remains any conflict between patient rights and
physician rights that cannot be reconciled within the Policies, the
former must govern”.
 The appellants make two objections to the Divisional
Court’s proportionality analysis.
 First, they submit that in order for a Charter violation to
be found to be proportionate, there must be actual evidence of the
salutary effects flowing from the means chosen. In this case, they
say that there is no evidence that the Policies will have any
salutary effect. Far from improving access to health care, they say,
the Policies will force physicians like the appellants to leave family
practice, move to other practice areas, leave Canada, or even
cease practising medicine altogether. They say that the Policies
will harm, not help, the public.
 Second, the appellants challenge the Divisional Court’s
conclusion that objecting physicians could change the nature of
their practice so as to avoid coming into contact with issues
addressed by the Policies.