When religion must yield to the law
In a case being heard this week in an Ontario divisional court, a group of Christian doctors have launched a constitutional challenge against the College of Physicians and Surgeons of Ontario. The college requires religious doctors who refuse to offer medical assistance in dying ( MAID) to give an “effective referral” so that the patient can receive the procedure from a willing doctor nearby.
The doctors say that the college has limited their religious freedom under the Charter of Rights and Freedoms unjustifiably. They argue that a referral endorses the procedure and helps kill, breaking God’s commandment. In their view, patients should have to find willing doctors themselves and “self-refer,” sparing religious objectors from sin and a guilty conscience.
The college should certainly accommodate religious objectors more than it currently does, but the lawsuit will likely fail. It deserves to fail.
Religious freedom s ometimes has to yield to laws that prevent religious people from harming others. The Supreme Court of Canada has emphasized this in limiting religious freedom on a wide range of topics, including denials of blood transfusions, witnesses wearing niqabs in criminal trials, child custody disputes, accountability for unaccredited church schools and bans on Sunday shopping. When the Supreme Court struck down the former ban on assisted dying in 2015, it emphasized that religious freedom must be reconciled with the Charter right of patients who want to access MAID.
In response to the ruling, Parliament accommodated religion in the eligibility criteria for MAID. To qualify, a dying patient must have been informed of the palliative alternative, as Catholic groups demanded. The patient’s condition must be incurable, in an advanced state of irreversible decline in capability. Natural death must be reasonably foreseeable, even if the amount of time left is unknown. The patient must have enduring physical or psychological suffering that is intolerable to the patient, and cannot be relieved under palliative care that the patient finds acceptable.
In Ontario, the legislature put the College of Physicians and Surgeons in charge of regulating doctors and protecting patient access to medical care. The concern for patients who are frail, including people who have become unable to use a phone or computer to self- refer, is well founded. Doctors opposed to MAID have been obstructing access in Ontario, including in Cayuga and Windsor. They have created delays that caused patients to lose the capacity to consent to MAID, undermining patient access rights.
To be justifiable under the Charter, the college’s requirement for an “effective referral” had to be proportionate to the pressing problem of patient access. Among other things, proportionality required the college to limit religious freedom as little as reasonably necessary to protect frail patients.
That does not mean, however, that the college had to follow the least ambitious standard set by another province in protecting pa- tients. The Supreme Court has emphasized that federalism lets provinces reconcile Charter rights in different but equally valid ways, with a range of reasonable approaches. Provincial jurisdiction has little value if every province has to regulate the same way.
Courts have also given leeway on complex social issues like MAID, including when an expert lawmaker writes the details of a religious exemption after weighing competing rights.
Religious doctors and religious organizations have been falsely describing Ontario’s mandatory referral as an outlier. In fact, Nova Scotia, Quebec and Yukon also go beyond self- referral, and a bipartisan federal committee endorsed Ontario’s approach.
Nova Scotia requires an “effective transfer.” Objectors must find another accessible doctor and transfer the patient. Quebec requires a transfer to a health official who will take over. Yukon requires objectors to record the non- objecting doctor, nurse practitioner or agency t o whom a referral was directed.
Ontario’s college accommodated religious objectors in at least three ways. First, in response to concerns from religious groups, the college permits religious doctors to avoid making a direct refer- ral to another doctor, by instead directing the patient to an agency that will then make the referral. Second, the college lets an alternate doctor be available by phone, email, videoconference or other forms of telemedicine. This especially helps religious objectors in rural and remote areas. Third, and most importantly, the objecting doctor does not have to do the referral personally, and can designate someone else to do it.
Even though the college’s balanced approach is, in my view, justifiable and therefore legal, the college should do more to accommodate religious freedom.
Because Ontario’s referral is essentially a transfer, the college should follow Nova Scotia and call it an effective transfer. Words matter. The term “medically assistance in dying” is used out of respect for patients. The word “transfer” should be used out of respect for objecting doctors.
The college should also accommodate religious doctors more for early- stage patients. Religious people have the right to exercise their faith in a way that causes others only a minor inconvenience. As Chief Justice McLachlin has emphasized, not every patient who wishes to end their life is vulnerable.
The college’s 2008 policy recognized that religious objectors sometimes do not have to help patients arrange to see another doctor. A frail patient who cannot make a MAID phone call is different from an early- stage patient who can self- refer using a care co- ordination service. The situation is similar to a mobile woman seeking contraception or an abortion from a religious objector in a non-emergency with a willing provider nearby. Earlystage patients offer the province a chance to protect religious freedom better than is possible for frail patients and emergencies.