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Protection of Conscience Project

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Service, not Servitude
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Submission to the College of Physicians and Surgeons of Ontario
Re:
Professional Obligations and Human Rights

Appendix "E"

Legal Criticism


EI.    Introduction

EI.1    What follows are extracts from submissions made during the preliminary consultation on Physicians and the Human Rights Code that ended 5 August, 2014.

EII.    Submission 853: Ontario Barrister and Solicitor

EII.1    Two crucial considerations have been overlooked in the Policy:

1. The legal rights of physicians to have their religious/conscientious beliefs and practices accommodated by their employers, unions, and vocational associations to the point of undue hardship; and,

2. The CPSO's obligation as a quasi-governmental body to consider its members' constitutional rights of freedom of conscience and religion in its policymaking process.

EII.2    I address these issues and make corresponding recommendations in Parts I and II of this submission.

EII.3    In Part 111, I respond to submissions that appear to be before the CPSO which suggest that physicians may be compelled, as a matter of blanket policy, to perform medical services which violate their deeply held religious and conscientious beliefs. My submission affirms that not only is the CPSO under no legal obligation to adopt and enforce such a policy, but it would also risk violation of both the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms were it to do so.

EII.4    Finally, in Part IV, I summarize and submit my recommendations.

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EIII.    Submission 1173: Christian Legal Fellowship

EIII.1    . . . The CLF's membership consists of approximately 550 lawyers, law students, professors, and others who support its work; with approximately one third of its members in the Province of Ontario. It has 14 chapters in cities across Canada and student chapters in most Canadian law schools. While having no direct denominational affiliation, CLF's members represent more than 30 Christian denominations working in association together. . .

EIII.2    The CLF has intervened in numerous legal cases relating to matters of conscience and religious freedom at the appellate and Supreme Court level. The organization also engages in policy consultations raising issues that impact, among other things, religious freedom and human rights. CLF is therefore knowledgeable and well-positioned to comment on this CPSO Policy.

EIII.3    In reviewing the Policy, there are three broad areas of concern for CLF. First, we submit that the Policy fails to recognize that physicians have the right to freedom of religion and  conscience. Second, the Policy fails to recognize that lhe law protects physicians with religious beliefs from engaging in activities that violate their religious beliefs. their moral beliefs and their conscience. Third, the Policy obligates physicians, in "some circumstances" to actively refer a patient for services which violate the beliefs or conscience of the physician. . .

EIII.4    Under the law, physicians must be afforded the ability to align their practices with their conscience in these controversial areas and others, and that right must be made clear in the CPSO Policy. CLF therefore urges the CPSO to modify its Policy to reflect the principles outlined above, ensuring it accurately reflects physicians' rights pursuant lo the Charter and the Human Rights Code.

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EIV.    Submission 1181: Justice Centre for Constitutional Freedoms

EIV.1    . . .In its current form, the CPSO Policy misinterprets Ontario's Human Rights Code ("Code") as providing patients with a legal right or entitlement to receive medical services they may desire, and to receive these from any physician they may choose. Contrary to this misinterpretation, the Code protects the patient from being discriminated against on the basis of the patient's personal characteristics (e.g. race, religion, sexual orientation). This protection is fundamentally different from creating an entitlement to any particular drug, therapy, treatment, or medical procedure, or an entitlement of receiving this from every doctor.

EIV.2    Further, the current CPSO Policy fails to recognize the Charter's Section 2(a) freedom of conscience and religion, and the manner in which the Charter applies to protect physicians from state coercion. The Charter is part of Canada's Constitution - Canada's supreme law - and the CPSO cannot exclude it from consideration. This means that the CPSO Policy must interpret the Code in a manner consistent with the Charter. The current CPSO Policy fails to do so. . .

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