therefore, sinful. However, not all of the individual appellants
object to having a staff member provide the referral.
(3) The fresh evidence
[28] The appellants and the College each brought an application
to submit fresh evidence on the appeal and each consented to the
admissibility of the fresh evidence of the other. I would exercise
the court’s discretion to admit all the fresh evidence on appeal.
[29] Some of the appellants’ fresh evidence is directed to what
they contend was an erroneous assumption of the Divisional
Court that objecting physicians could avoid conflicts between
their religious beliefs and their obligations under the Policies by
changing their practices to other specialties or sub-specialties,
with little or no burden. They contend that the evidence suggests
that the process of changing one’s practice is, in fact, time-consuming, costly and risky. They argue that the Divisional
Court’s mistaken assumption resulted in a flawed s. 1 analysis.
[30] The appellants’ fresh evidence is also directed to showing
that patients can access MAiD through Ontario’s Care Coordination
Service (the “CCS”) and that the publicly-accessible “Telehealth”
service in Ontario can provide access to information and referral
for MAiD and for other services such as abortion, contraception
and other reproductive health services.
[31] In May 2017, Ontario established the CCS to assist patients
and clinicians in accessing information and support for MAiD and
other end-of-life options, including palliative care and hospice care.
At the time the applications were heard by the Divisional Court,
the CCS had just been announced. At that time, it was only accessible by physicians. That model has since been replaced by a direct
access system that does not require a physician to make a referral.
[32] Through the CCS, patients and their caregivers can be
connected with a physician or nurse practitioner who can conduct an assessment of whether a patient’s condition meets the
eligibility requirements for MAiD and, if appropriate, can
provide MAiD and related services. Physicians or nurse practitioners who are unwilling or unable to provide MAiD can also
contact the CCS to refer their patients to medical personnel
who can provide such services.
[33] Telehealth provides a free, confidential, telephone-accessed
service, in both French and English, and with translation support
for some other languages, for health advice and information on
a 24 hours per day, seven days per week basis. A registered
nurse will discuss the caller’s health issues in order to assess the
caller’s health concerns and give advice. The nurse will not
diagnose the condition or prescribe medication. The nurse will
