dying (“MAiD”), abortion and reproductive health services and
physicians’ freedom to refuse to participate in services to which
they have religious objections.
[2] The appellants challenge the constitutionality of two policies
(the “Policies”) enacted by the College of Physicians and Surgeons
of Ontario (the “College”). The Policies each require physicians who
object to providing certain medical procedures or pharmaceuticals
on the basis of religion or conscience to provide the patient with an
“effective referral”. An effective referral is defined as “a referral
made in good faith, to a non-objecting, available, and accessible
physician, other health-care professional, or agency”.1 The Policies
do not require physicians to personally provide the services to
which they object, except in an emergency where it is necessary
to prevent imminent harm to a patient.
[3] The constitutionality of the Policies’ effective referral
requirements is the focus of this appeal.
[4] The appellants are individual physicians and organizations
representing physicians in Ontario. They brought two separate
applications in the Divisional Court, challenging the Policies on
the ground that the effective referral requirements infringe their
freedom of conscience and religion under s. 2(a) of the Canadian
Charter of Rights and Freedoms because the requirements oblige
them to be complicit in procedures that offend their religious
beliefs. The appellants also claimed that the effective referral
requirements discriminate against physicians based on their
religions, thus infringing their s. 15(1) equality rights.
[5] The Divisional Court dismissed the appellants’ applications.
It found that while the Policies infringe their freedom of religion,
the infringement is justified under s. 1 of the Charter, because the
Policies are reasonable limits, demonstrably justified in a free and
democratic society. The Divisional Court did not consider whether
freedom of conscience is engaged. It dismissed the s. 15(1) claim
in its entirety.
[6] The appellants and the College each take issue with the
Divisional Court’s findings regarding the cost or burden imposed
by the Policies on objecting physicians, and the corresponding
balancing in the R. v. Oakes, [1986] 1 S.C.R. 103, [1986] S.C.J.
No. 7 analysis of that cost or burden against the salutary effects
of the Policies. They each sought to adduce fresh evidence on this
issue. The College denies there is a breach of s. 2(a), but says that
if there is, it is justified under s. 1.
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1 Policy Statement #4-16, entitled “Medical Assistance in Dying”, refers to
“nurse practitioner” in place of “other health-care professional”.
