Conscience fight moves to the political arena

The Catholic Register

Michael Swan

Having lost twice in court, the battle for conscience rights for health care workers in Ontario is now a political battle.

“We feel we really need legislation,” said Christian Medical and Dental Society of Canada executive director Deacon Larry Worthen. “It’s basically for us a call to action.”

The latest setback came May 15 when the Ontario Court of Appeal ruling upheld a College of Physicians and Surgeons of Ontario (CPSO) requirement that doctors in the province must give referral for medical services such as assisted dying and abortion that conflict with their moral or religious beliefs. . . [Full text]

Forced Referral and Freedom of Religion vs Freedom of Conscience

Without freedom of conscience our free democracy would not exist

The Epoch Times

Shawn Whatley, MD*

A recent court decision in Ontario missed the mark when it ignored the impact forced referral has on freedom of conscience.

On May 15, the Ontario appeals court ruled that doctors must give patients a referral for euthanasia, abortion, and other contentious issues, regardless of what an individual doctor thinks about them.

The court battle started after the medical regulator in Ontario, the College of Physicians and Surgeons of Ontario (CPSO), created a policy that forced doctors to refer for procedures, regardless of doctors’ deeply held convictions of religion or conscience. Doctors who refuse would risk being fined and/or losing their license to practice medicine. . . [Full text]

With Ontario court’s ruling on doctors, the revolution continues

There is a growing antipathy among Canadian elites against conscientious individuals who refuse to accept their views

National Post

Barry W. Bussey*

How is it that such a simple decision could be made so complicated? Given the history of accommodating individual conscience in the medical profession and in Canadian law, the case before the Ontario Court of Appeal to accommodate doctors’ consciences was a “no-brainer.” The law, history, and basic human decency cried out: “Accommodate the physician!” Instead, the highest court in Ontario followed the worrying legal revolution against accommodation and stomped on conscience. And it did so wrapped up in language that purported to support vulnerable patients.

The decision against physicians who, because of conscience, cannot assist in the intentional killing of a human being, pre- or post-birth, is a travesty of justice. It is wrong. It is wrong morally, ethically and legally. . . [Full Text]

Ontario Court of Appeal supports ‘effective referral’ for morally contested procedures, including euthanasia


Court unanimously affirms right of state to compel participation in homicide, suicide, etc.

News Release

Protection of Conscience Project

On 15 May, 2019, three judges of the Ontario Court of Appeal unanimously upheld a lower court ruling that physicians can be forced to facilitate procedures they find morally objectionable, including euthanasia and assisted suicide, by connecting patients with willing providers (“effective referral”).

The Court of Appeal judgement concerned a 2018 decision by the Ontario Divisional Court that had been appealed by the Christian Medical and Dental Society of Canada and others. The litigation was a response to a compulsory “effective referral” policy imposed by Ontario’s state medical regulator, the College of Physicians and Surgeons of Ontario.

The Protection of Conscience Project, Catholic Civil Rights League and Faith and Freedom Alliance jointly intervened at trial and in the appeal in support of freedom of conscience.

The Divisional Court and the Court of Appeal both acknowledged the joint intervention, but neither considered the arguments it proposed because the case was decided solely on the basis of freedom of religion claims. The Court of Appeal held that the evidence at trial was “insufficient to support an analysis of freedom of conscience.”

“To the extent the individual appellants raise issues of conscience,” said the Court, “they are inextricably grounded in their religious beliefs,” so that, “at its core, the appellants’ claim is grounded in freedom of religion.”[para. 85]

Since the arguments in the Project’s intervention were not addressed at trial or in the appeal, Project Administrator Sean Murphy believes that they are unaffected by the decision.

“The focus of the Court was on religiously-motivated refusal to participate in perceived wrongdoing,” said Murphy. “The analytical framework proposed in the joint intervention could easily have been adapted and applied to that particular form of the exercise of religious freedom. The evidentiary record would have been sufficient for that purpose.”

“However, the Court did not do this, so the arguments still stand, and they can be raised again in another appropriate case.”

The decision demonstrates that the judges uncritically adopted the view of the College that euthanasia, assisted suicide, abortion, contraception, sterilization, sex change surgery, etc. are acceptable forms of medical treatment or health care. They further noted that abortion, euthanasia and assisted suicide “carry the stigmatizing legacy of several centuries of criminalization grounded in religious and secular morality.” [para. 123]. On the other hand, they gave no weight to contrary views held by the plaintiffs.

The Court of Appeal also supported the College’s assertion that objecting physicians unwilling to comply with the demand for effective referral could change their scope of practice and move into fields like “sleep medicine, hair restoration, sport and exercise medicine, hernia repair, skin disorders . . . obesity medicine, aviation examinations, travel medicine . . . administrative medicine or surgical assistance.”[para. 71]

The appellants have 60 days to consider and appeal to the Supreme Court of Canada.

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Contact: Sean Murphy, Administrator
Protection of Conscience Project
Email: protection@consciencelaws.org

Statement on the Denial of Conscientious Objection from the “Effective Referral” Mandate

News Release

Catholic Civil Rights League

Toronto, ON May 15, 2019 – The Catholic Civil Rights League (CCRL) is disappointed with the decision released today of the Ontario Court of Appeal, in CMDS et al v. CPSO.

In its ruling, the unanimous three member panel of the Court of Appeal, comprised of Chief Justice George Strathy, and Appellate Justices Sarah Pepall and J. Michal Fairburn upheld a previous decision from Ontario’s Divisional Court, from January 31, 2018. That ruling denied conscientious exemption from the “effective referral” mandate of the College of Physicians and Surgeons of Ontario (CPSO) for doctors who morally objected to participating in objectionable procedures such as assisted suicide, gender re-assignment surgeries, or abortion.

By way of background, individual Catholic and Christian doctors and several organizations had challenged the CPSO, which over the course of the past four years changed its professional guidelines on professional conduct, forcing Ontario doctors who objected to morally objectionable procedures to provide an “effective referral” to a willing doctor for such services. Previously, doctors were relieved from any such obligation.

Ontario is the only provincial or territorial jurisdiction which has made demands to this extent with its doctors. Other jurisdictions have elected to recognize such conscientious objections, or have provided a means to allow other transfers of a patient’s file, without infringing such rights.

In 2018, the Ontario Divisional Court had ruled in favour of the CPSO, despite finding that the religious freedom of doctors had been infringed. The Applicants appealed.

At the appeal, the CCRL, the Faith and Freedom Alliance (FFA) and the Protection of Conscience Project (PCP), had argued in a joint submission as an intervener that such “effective referrals” made objecting doctors complicit in the provision of the objectionable procedures, such as abortion, or assisted suicide. We argued that the referral requirement imposed the values of the state upon individuals, forcing them to violate their own consciences, without adequate justification.

Our intervention wished to expand the arguments into the area of conscience protection, in addition to religious freedoms asserted by the appellants under s. 2a of the Charter, but those submissions were not pursued by the Court of Appeal.

The Court of Appeal accepted that there was an infringement on the s. 2a rights of the appellants, but that the infringement was justified as a reasonable limit on those rights (para. 187).

The Court of Appeal decision clarified that “non-compliance with the [CPSO] Policies is not an act of misconduct” under the College’s professional misconduct regulations (para. 16), but could be used as evidence of falling below a professional standard if a misconduct allegation were brought (para. 17).

The Court accepted that referrals could be made in a variety of ways, or even by a staff member as a triage engagement (paras. 24-27).

The decision also referred to the availability of other practice arrangements endorsed by the CPSO, to allow doctors to “avoid” the demand for an effective referral, such as working in a hospital setting, or a group practice, if others were prepared to engage in the objectionable treatment, or make the requested referral (paras. 176-187).

The acceptance of such arrangements in the Court’s decision presented a dichotomy. In recognizing the infringement of s. 2a rights, several proposed workarounds were accepted, such as working in a hospital context, or in a group practice where others would be willing to make the referral, or having employees make the referral. Other jurisdictions have avoided the original effective referral demand, or have allowed for conscientious objections outright, which a majority of Ontario doctors supported.

The Court was not persuaded that a demand to change practice or specialty areas constituted a sufficient intrusion into a doctor’s existing practice. That may be a challenge for the typical cancer specialist, or cardiologist, who may be confronted more often with a demand for medical assistance in dying, especially in the absence of available palliative care options. While not underestimating the individual sacrifices that may be required (paras. 186, 187), the court’s answer suggested that it was perhaps time to change one’s specialty, or submit.

The CCRL continues to support Christian or other doctors who have raised serious concerns over the “effective referral” mandate of the CPSO, and look forward to continuing discussions on how best to serve their interests.

Click here to view the written factum of the CCRL, FFA, and PCP, submitted in November 2018, which made reference to important principles of law and philosophy, quoting Martin Luther King Jr., Jacques Maritain, and others.

We submitted that moral rights are central to one’s sense of human dignity, and that it was unacceptable to marginalize objecting physicians as religious extremists. The Ontario Medical Association (OMA) likewise opposed the “effective referral” regime, as representatives of Ontario doctors.

Ontario doctors should be persuaded that it may be time to re-visit these demands with a future Council of the CPSO, for which hopefully conscientious physicians will seek to pursue.

Sometimes change is needed to be undertaken by the governed to secure justice.

The euthanasia slippery slope is here

National Post

Barbara Kay

Last week marked the four-year anniversary of the Supreme Court ruling that validated Medical Assistance in Dying (MAID). At the time, many euthanasiasts confidently predicted there would be no “slippery slope” toward abuses. . . Federal Justice Minister David Lametti has said the government will continue to review the practice of MAID. . . Will he take into serious consideration the opinions of doctors who find the practice repugnant and contrary to conscience? . . .[Full text]

New hope for Ontario doctors’ conscience fight

The Catholic Register

Michael Swan

New evidence heard in court has given Ontario’s medical conscientious objectors renewed hope.

Two days of hearings before the Ontario Court of Appeal Jan. 21-22 has provided Christian Medical and Dental Society (CMDS) executive director Deacon Larry Worthen a dollop of confidence as he waits for a decision from the three-judge panel.

“We gave a very good presentation,” Worthen told The Catholic Register after the appeal. “There were some new arguments. There was new evidence.”

The three-judge panel’s ruling has been reserved, with observers expecting a decision in March. . . [Full text]

New hope for Ontario doctors’ conscience fight

The Catholic Register

Michael Swan

New evidence heard in court has given Ontario’s medical conscientious objectors renewed hope.

Two days of hearings before the Ontario Court of Appeal Jan. 21-22 has provided Christian Medical and Dental Society (CMDS) executive director Deacon Larry Worthen a dollop of confidence as he waits for a decision from the three-judge panel. . . Full Text

The CCRL Participates In Ontario Court of Appeal with Oral Arguments in Support of Physicians’ Conscience Rights

News Release

Catholic Civil Rights League

Toronto, ON January 25, 2019 – The Catholic Civil Rights League (CCRL) participated with oral arguments in the CMDS et al v. CPSO hearing at the Ontario Court of Appeal on January 21 and 22. Individual Catholic and Christian doctors and organizations had challenged the College of Physicians and Surgeons of Ontario (CPSO), which over the course of the past three years had stipulated an “effective referral” regime, forcing Ontario doctors who objected to morally objectionable procedures to provide an “effective referral” to a willing doctor for such services. Previously, doctors were relieved from any such obligation. Ontario is the only provincial or territorial jurisdiction which has made such demands of its doctors.

The Ontario Divisional Court had ruled in favour of the CPSO, on January 31, 2018, despite finding that the religious freedom of doctors had been infringed. The appellants and the League, in conjunction with the Faith and Freedom Alliance and the Protection of Conscience Project, had argued that such “effective referrals” made objecting doctors complicit in the provision of the objectionable procedures, such as abortion, or assisted suicide. The previous court decision allowed the infringement as a modest incursion into the rights of physicians, in the context of the ability of patients to access publicly available “services”. Moreover, the court previously ruled that objecting physicians could re-arrange their practice specialties to “accommodate” such referrals. The doctors and their respective organizations appealed.

In addition to the arguments presented by the lawyers for the appellants, the CCRL and its partners raised the particular arguments that such demands were in breach of the conscience rights of Ontario doctors, as forcing individuals to do something that they considered “wrong”, and was a form of enforced servitude.

Click here to view the CCRL’s written factum, submitted in November 2018, which made reference to important principles of law and philosophy, quoting Martin Luther King Jr., Jacques Maritain, and others.

At the appeal hearings, held at Toronto’s Osgoode Hall, arguments focused on whether the CPSO could justify its referral policy as a “reasonable limit” on the rights of objecting doctors. The CCRL’s lawyer, Mr. Emrys Davis, submitted that moral rights are central to one’s sense of human dignity, and that it was unacceptable to marginalize objecting physicians as religious extremists. Moreover, given that the Ontario Medical Association likewise opposed the “effective referral” regime, such concerns were shared by a large numbers of Ontario doctors. The CCRL and its partners argued that the referral requirement imposed the values of the state upon individuals, forcing them to violate their own constitutionally protected consciences, without justification.

The CPSO’s lawyers had suggested that objecting doctors could go so far as to instruct an intake employee to make the proposed referrals on their behalf. We argued that such doctors would still be responsible morally to such a proposal, and would be left with no meaningful choice. Telling an employee to commit an immoral act would still offend the consciences of objecting doctors. The choice imposed by the CPSO was either to violate one’s conscience, or become subject to professional discipline for refusing to make such referrals.

In his closing remarks, Chief Justice of Ontario George Strathy thanked the many interveners for bringing their unique viewpoints and knowledge to the assistance of the court, which reserved its decision to a later date. The CCRL thanks the fine work of our lawyers at Bennett, Jones in Toronto, for its efforts on behalf of our interveners.


About the CCRL

Catholic Civil Rights League (CCRL) (www.ccrl.ca) assists in creating conditions within which Catholic teachings can be better understood, cooperates with other organizations in defending civil rights in Canada, and opposes defamation and discrimination against Catholics on the basis of their beliefs. The CCRL was founded in 1985 as an independent lay organization with a large nationwide membership base. The CCRL is a Canadian non-profit organization entirely supported by the generosity of its members.

To donate to the CCRL, please click here.

For further information: Christian Domenic Elia, PhD CCRL Executive Director 416-466-8244 @CCRLtweets

Protection of Conscience at the Ontario Court of Appeal

News Release

Protection of Conscience Project

On 21/21 January the Protection of Conscience Project jointly intervened at the Court of Appeal of Ontario to support freedom of conscience against an oppressive policy of Ontario’s state medical regulator, the College of Physicians and Surgeons of Ontario (CPSO). CPSO policies demand that physicians who object to morally contested procedures – including euthanasia and assisted suicide – must help patients find a colleague willing to provide the contested services.

The Court was hearing the appeal of the Christian Medical and Dental Society of Canada, the Canadian Federation of Catholic Physicians’ Societies, Canadian Physicians for Life and five individual physicians against an Ontario Divisional Court decision . The Divisional Court had ruled in favour of the CPSO, ruling, in effect, that physicians unwilling to do what they believed to be wrong by providing “effective referrals” were free to move to medical specialties where they would not face conflicts of conscience.

Expert evidence from the appellants indicated that it is extremely difficult for physicians to retrain, and that only 2.5 per cent of all physician positions in Canada would be “safe” for objecting physicians: pathology, hair loss, obesity medicine, sleep disorders and research were among the few available specialities.

The appellants’ submissions were supported by the intervention of the Ontario Medical Association, representing more than 41,000 practising and retired physicians, medical students and residents.

Joining the Project as “Conscience Interveners” were the Catholic Civil Rights League and Faith and Freedom Alliance. The joint submission noted the difference between perfective freedom of conscience (doing what one believes to be good) and preservative freedom of conscience (refusing to do what one believes to be wrong), a distinction hitherto ignored in judicial analysis.

Acknowledging that freedom of conscience can be limited to safeguard the common good, the Conscience Interveners argued that it does not follow that limits on perfective and preservative freedom of conscience can be justified on the same grounds or to the same extent.

The joint intervention drew the Court’s attention to the opinion of Supreme Court Justice Bertha Wilson in R v. Morgentaler, the only extended discussion of freedom of conscience in Canadian jurisprudence. Justice Wilson’s reasoning drew upon the key principle that humans are not a means to an end, and we should never be exploited by someone as a tool to serve someone else’s good – a principle championed by people like Martin Luther King Jr.

This principle – identified as the principle against servitude – was proposed as a principle of fundamental justice, a novel and constitutionally significant assertion. Alternatively, the Conscience Interveners argued that the principle against servitude is so foundational to human rights and freedoms it is difficult to imagine how violating it might be justified.

Forcing someone to participate in perceived wrongdoing demands the submission of intellect, will, and conscience, and violates the principle against servitude by reducing that person to the status of a tool to be used by others. This manner of servitude cannot be reconciled with principles of equality. It is an assault on human dignity that deprives physicians of their essential humanity.

Factum of the Conscience Interveners

The Evangelical Fellowship of Canada, B’nai Brith, and the Justice Centre for Constitutional Freedoms intervened in support of the physician appellants. Dying With Dignity Canada and the Canadian Civil Liberties Association intervened against them.

The Court reserved its decision.

Related: CCRL news release

Contact: Sean Murphy, Administrator, Protection of Conscience Project Email: protection@consciencelaws.org