where the court stated: “Conduct which would potentially cause
harm to or interference with the rights of others would not auto-
matically be protected.”
[77] In my view, the Divisional Court correctly determined
that the contextual features identified by the College are more
appropriately considered under the s. 1 analysis, rather than in
delineating the scope of the claimed religious freedom. While it
is true that s. 2(a) is internally limited, that not all religious
conduct is protected by the Charter, and that context is
important in considering whether interference with religious
freedom is “trivial or insubstantial”, the specific contextual
features identified by the College are more relevant to the pro-
portionality analysis under s. 1. As noted above, the Divisional
Court concluded that at least some of the individual appellants
are not free to practise medicine in accordance with their
religious beliefs as a result of the effective referral requirements.
That interference is not rendered “trivial or insubstantial” simply
because physicians practise in a “regulated profession that holds
patient-centred care as a core value”. However, that context is
important when considering whether the effective referral
requirements are minimally impairing, and when balancing the
salutary and deleterious effects of the requirements. Accordingly,
the contextual features identified by the College are considered
under the s. 1 analysis, below.
[78] The College also submits that the cost or burden imposed
by the Policies on objecting physicians is, at its highest, a minor
practice management issue. It only requires administrative
changes to the physician’s practice, such as using a designate,
or hiring support staff. The College suggests that even sole practitioners, a group identified by the Divisional Court as particularly
affected by the Policies, “need only implement a system to triage
specific patient requests, such as having a staff member connect
patients with appropriate care providers or agencies, or partnering
with another practitioner or clinic”. Physicians operating in rural
or remote regions, who cannot partner with a non-objecting
physician, may discharge their responsibilities by connecting the
patient to a social service agency. What the Policies require is
a personal and good faith effort to ensure that the patient
is connected to the service they are seeking. In the College’s view,
this burden constitutes a trivial or insubstantial interference.
[79] The findings of the Divisional Court on this issue are supported by the record, in which some of the appellants depose that
their religious beliefs would preclude them from giving a referral
to another physician for MAiD, abortion or certain reproductive
procedures and that they would be compelled to abandon their
