Freedom of Conscience and Human Rights
Bioethics Matters 7:4
June, 2009
Canadian Catholic Bioethics Institute
Reproduced with permission
Michelle Davis, BSc, MDiv, ThM
*A series of Bioethics Matters will look at the
Ontario Human Rights Commission, the Ontario Human
Rights Code, and the Canadian Charter of Rights and
Freedoms to explore the issues of religious
discrimination, the right to be free from
discrimination based on creed (religion), and the
freedom of conscience and religion.
The main reason for doing so is that in 2008 the
Ontario Human Rights Commission examined the policy
of the College of Physicians and Surgeons of Ontario
(CPSO), asking whether some practices might be
discriminatory if based on moral or religious
beliefs of physicians.
In December 2008, after extensive input by
members and other interested parties, CPSO produced
a policy statement in which it reminded physicians
that refusing to provide services to a patient based
on the physician's religious beliefs may be
discriminatory. The statement reads "[W]ithin the
[Human Rights] Code, there is no defence for
refusing to provide a service on the basis of one of
the prohibited grounds. This means that a physician
who refuses to provide a service or refuses to
accept an individual as a patient on the basis of a
prohibited ground such as sex or sexual orientation
may be acting contrary to the Code, even if the
refusal is based on the physician's moral or
religious belief."1
The policy stated that the law is not clear on this
issue, and the College is unable to advise
physicians on how the Commission, the Tribunal, or
courts will decide cases where they must balance the
rights of physicians with those of patients.2
The Ontario Human Rights Code does not appear to
protect freedom of conscience which is guaranteed
under the Canadian Charter of Rights and Freedoms.
The Ontario Human Rights Commission (OHRC)
The OHRC was established in 1961 to administer
the Ontario Human Rights Code (referred to as the
Code). The Code was the first of its kind in Canada
and was implemented to protect the people of Ontario
against discrimination in employment, accommodation,
goods, services and facilities, and membership in
vocational associations and trade unions.3
There are fifteen grounds of discrimination. They
are: race, ancestry, place of origin, ethnic origin,
citizenship, colour, creed (religion), disability,
sex (including pregnancy), sexual orientation, age
(18 and over, 16 and over in occupancy of
accommodation), marital status (including same sex
partners), family status, receipt of public
assistance (in accommodation only), and record of
offences (in employment).4
The Commission has a full time Chief Commissioner
and a number of part time commissioners. The OHRC is
intended to be an independent statutory body which
provides leadership for the promotion, protection,
and advancement of human rights, and to build
partnerships across human rights systems.5
The Commission achieves its objectives through
empowering people to realize their rights and
ensuring they are upheld. The OHRC works with the
Human Rights Tribunal of Ontario (HRTO) and the
Human Rights Legal Support Centre. The Commission
works to develop and encourage the implementation of
human rights policies and conducts research.6
It uses its legal powers to pursue remedies in the
public interest.7 An
annual report on the activities and concerns of the
OHRC is presented to the Speaker of the House of the
Ontario Government. Previously this report was sent
to the Attorney General of Ontario.
Human Rights Code Amendment Act
In June 2008, changes to the Human Rights system
came into effect. The Human Rights Code Amendment
Act was passed in December 2006 and changed several
aspects of the OHRC. The OHRC no longer processes
human rights complaints. Instead, an individual
files a complaint directly to the Human Rights
Tribunal of Ontario (HRTO) and a new agency, the
Human Rights Legal Support Centre, will offer legal
services and advice to individuals with human rights
complaints and/or concerns.8
This Act expanded the role of the OHRC and it was
given the power to "expand its work in promoting a
culture of human rights in the province, conduct
public inquiries, initiate [their] own applications,
intervene in proceedings at the Human Rights
Tribunal of Ontario, and focus on engaging in
proactive measures to prevent discrimination using
public education, policy development, research and
analysis."9 The OHRC
has the power to monitor and report on anything
related to human rights. The new law allows the OHRC
to determine if legislation is inconsistent with the
intent of the Code.10
The role of developer of "public policy on human
rights is made explicit in the new legislation, as
is the way those policies can be used in issues that
are before the Tribunal."11
This may give the impression that an OHRC policy
is law. Only the Code is law. The OHRC can examine
the policy of a particular workplace and strongly
recommend policy changes that the OHRC believes are
necessary in order to comply with the Code, or risk
potential complaints of discrimination based on that
policy. While this can be a positive step, it may
also raise legal concerns such as how to interpret
the code in certain circumstances. A policy may
appear discriminatory but upon detailed analysis may
not be so and vice versa.
Sections 1 and 18 of the Code
Sections 1 and 18 of the Code are of particular
interest about the right to services and the right
to be exempt from providing certain services.
Section 1 of the Code states that "every person has
a right to equal treatment with respect to services,
goods and facilities, without discrimination because
of race, ancestry, place of origin, colour, ethnic
origin, citizenship, creed, sex, sexual orientation,
age, marital status, family status or disability."12
This would mean that people cannot be denied
services because of their creed, sex or any other
grounds covered by the Code. It does not address the
rights of the person providing the services. The
Code does not define "creed," but the OHRC in its
Policy on Creed and the Accommodation of Religious
Observances, defines it as "religious creed or
religion. It is defined as a professed system and
confession of faith, including both beliefs and
observances or worship. A belief in a God or gods,
or a single supreme being or deity is not a
requisite."13 Further,
the document states that "the existence of religious
beliefs and practices are [sic] both necessary and
sufficient to the meaning of creed, if the beliefs
and practices are sincerely held and/or observed."14
By way of example, Section 18 of the Code
addresses the solemnization of marriage by religious
officials. Section 18.1 (1) states that "the rights
under Part I to equal treatment with respect to
services and facilities are not infringed where a
person registered under section 20 of the Marriage
Act refuses to solemnize a marriage, to allow a
sacred space to be used for solemnizing a marriage
or for an event related to the solemnization of a
marriage, or to otherwise assist in the
solemnization of a marriage, if to solemnize the
marriage, allow the sacred place to be used or
otherwise assist would be contrary to, (a) the
person's religious beliefs; or (b) the doctrines,
rites, usages or customs of the religious body to
which the person belongs."15
This section protects the rights of a person
providing a service. A person is not required to
provide a service which would be contrary to his/her
religious beliefs or the doctrine of the person's
religion.
Section 1 protects the rights of a person to
receive services, goods and facilities, free from
discrimination, on a variety of grounds. Section 18
protects the rights of certain individuals regarding
the provision of services which would be contrary to
their creed. Ministers of religion and their
premises are protected. However, in the case of
physicians, there is no apparent protection of their
rights to refuse to provide services which would be
contrary to their creed and religious beliefs. This,
of course, is a dangerous situation for all people
in health care, not only physicians, and raises
questions about consequences, should physicians act
in accordance with conscience. Physicians who refuse
to provide abortion services or make referrals to
such services seem to have no protection under the
Code, and could face legal proceedings for not
providing such services.
Conclusion
Moves are afoot in the US, UK, Canada and other
countries to remove traditional "protection of
conscience" from professional codes, from civil
servants, educators, and others. We need to be alert
to these moves, and to challenge then when they are
made. Protection of conscience is vital to
membership in a pluralistic and relativistic society
which mistakenly gives weight to the rights of those
demanding services over those providing services,
whether in the field of health care, education, the
civil service, or other areas. â–
Notes
1. The College of Physicians
and Surgeons of Ontario, Policy Statement #5-08
"Physicians and the Ontario Human Rights Code."
Accessed on March 16, 2009.
2. Ibid.
3. The Ontario Human Rights
Commission-About
Us. Accessed on March 13, 2009.
4. Ibid.
5. Ibid.
6. Ibid.
7. Ibid.
8. The Ontario Human Rights
Commission-Our Changing Mission.
"The New Mandate of the Ontario Human Rights
Commission." Accessed on March 16, 2009.
9. Ibid.
10. Ibid.
11. Ibid.
12. 12
The Ontario Human Rights Code. Accessed
on March 16, 2009.
13. Ontario Human Rights
Commission,
Policy on Creed and the Accommodation of Religious
Observances. Accessed on March 16, 2009.
14. Ibid.
15.
The Ontario Human Rights Code. Accessed
on March 16, 2009.
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