CMDS v CSPO (Part 1): ONSC Weighs Religious Physicians’ Charter Claim

On January 31, the Ontario Divisional Court released its decision in Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario. In the first of this two-part post, I provide a summary of the facts of the case before analyzing the Court’s reasons on standard of review and the Applicants’ section 2(a) claim. In the next part of this post, I will assess the Court’s reasons on section 15 as well as its section 1 Oakes analysis.

The Supreme Court of Canada’s (“SCC”) 2015 decision in Carter v Canada, 2015 SCC 5 [Carter], which struck down the former federal prohibition on medical assistance in dying (“MAID”), sent shockwaves throughout the Canadian legal and medical professions. Nearly three years later, we are only beginning to understand the legal, ethical, and philosophical implications of this landmark ruling. The Ontario Superior Court’s (“ONSC”) ruling in January in Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579 [CMDS v CPSO] is one of the first major judicial decisions to arise in response to Canada’s new MAID regime. Many more decisions (including the much-publicized Lamb v Canada litigation) are expected to follow in the months and years ahead.

The matter arose on applications from three associations of physicians—including the titular Christian Medical and Dental Society (“CMDS”)—and five individual physicians challenging two policies passed in recent years by the Respondent College of Physicians and Surgeons of Ontario (“CPSO”). The Applicants together claimed that these policies violated section 2(a) and section 15 of the Charter of Rights and Freedoms (the “Charter”) by requiring that physicians who are unable to provide patients with certain types of health care on conscientious or religious grounds must nevertheless provide “effective referrals” to other practitioners. Justice Wilton-Siegel, writing for a unanimous court, dismissed the applications on the grounds that any such Charter violations were justified under section 1.

The CPSO Policies

In March 2015 the CPSO passed Policy Statement #2-15: Professional Obligations and Human Rights (the “Human Rights Policy”), which outlines Ontario physicians’ professional obligations in matters relating to human rights (CMDS v CPSO, para 18). The Applicants challenged two specific components of the policy, which require that:

Where physicians are unwilling to provide certain elements of care for reasons of conscience or religion, an effective referral to another health-care provider must be provided to the patient. An effective referral means a referral made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency. The referral must be made in a timely manner to allow patients to access care.  Patients must not be exposed to adverse clinical outcomes due to a delayed referral. Physicians must not impede access to care for existing patients, or those seeking to become patients.

…

Physicians must provide care in an emergency, where it is necessary to prevent imminent harm, even where that care conflicts with their conscience or religious beliefs. (CMDS v CPSO, para 11)

Notably, the Human Rights Policy followed an earlier predecessor policy which did not require conscientiously objecting physicians to provide effective referrals or care in the case of emergencies. The CPSO began a consultative review of the predecessor policy in mid-2014, with the first draft of the challenged policy being released in December 2014 (CMDS v CPSO, paras 14-16).

The year after the Human Rights Policy came into effect, the CPSO established a working group to respond to the SCC’s ruling in Carter. In May 2016, the CPSO adopted Policy #4-16 on physician-assisted death (the “PAD Policy”) (CMDS v CPSO, paras 21, 24). As with the Human Rights Policy, the Applicants challenged the PAD Policy’s requirement that:

Where a physician declines to provide medical assistance in dying for reasons of conscience or religion, the physician must not abandon the patient. An effective referral must be provided. An effective referral means a referral made in good faith, to a non-objecting, available, and accessible physician, nurse practitioner or agency. The referral must be made in a timely manner to allow the patient to access medical assistance in dying. Patients must not be exposed to adverse clinical outcomes or delayed referrals. (CMDS v CPSO, para 12)

The Court noted that the challenged policies were adopted by the CPSO as policies of general application, meaning that, although subject to the Charter, the policies had not been passed pursuant to the Regulated Health Professionals Act. Consequently, failure to comply with the policies could not give rise to a specific act of professional misconduct, although non-compliance could be brought forward as evidence of misconduct at CPSO disciplinary hearings (CMDS v CPSO, paras 28-30).

Administrative Framework and Standard of Review

The Court began its substantive analysis of the Applicants’ Charter claims by deciding the appropriate standard of review. The Applicants proposed that the Court begin by determining whether a Charter violation had been made out before conducting a section 1 analysis using the SCC’s methodology from R v Oakes, [1986] 1 SCR 103 [Oakes] on a standard of review of correctness, with no deference being owed to the CPSO (CMDS v CPSO, para 52).  In contrast, the Respondents urged the court to conduct a section 1 analysis using the SCC’s framework from Doré v Barreau du Quebec, 2012 SCC 12 [Doré] on a reasonableness standard of review (CMDS v CPSO, para 54). Although the Attorney General of Ontario (as an intervener) agreed with the Applicants that the Oakes test was more appropriate and that the standard of review should be correctness, it advised the Court that deference should be owed to the CPSO’s decisions in matters that require Charter rights to be balanced (CMDS v CPSO, para 53).

Since the Applicants were challenging the constitutionality of specific textual provisions, rather than an adjudicative decision, the Court concluded that Oakes (and not Doré) was the most applicable section 1 test and that the appropriate standard of review was correctness (CMDS v CPSO, para 57-58). In making this decision, the Court noted that the CPSO was not an expert decision-maker in matters relating to Charter balancing and that, consequently, its discretionary decision to adopt the impugned policies did not attract automatic deference (CMDS v CPSO, para 66). More specifically, the Court emphasized that because “the CPSO does not have any particular expertise in the Charter, this balancing, including the input of the CPSO’s expertise, is appropriately addressed in the proportionality exercise under the Oakes test notwithstanding the operation of a correctness standard” (CMDS v CPSO, para 68).

The Applicants’ Section 2(a) Claim

The Court next moved into its analysis of the claimants’ freedom of religion and freedom of conscience claims under section 2(a) of the Charter, noting that the primary objection to the impugned policies was that they would compel objecting physicians to provide effective referrals for abortion and MAID (CMDS v CPSO, para 85). Reiterating the SCC’s articulation of the scope of freedom of religion from R v Big M Drug Mart Ltd, [1985] 1 SCR 295 [Big M], the Court emphasized that the primary indicator of a section 2(a) infringement will be found when “a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen” (CMDS v CPSO, para 88 citing Big M, para 95).

Adopting the SCC’s framework from Syndicat Northcrest v Amselem, 2004 SCC 47 [Amselem], the Court laid out the following two-part test for establishing a freedom of religion violation:

1. Do the Applicants have a practice or belief, having a nexus with religion, which calls for a particular line of conduct?; and
2. Are the Applicants sincere in their religious belief? (CMDS v CPSO, para 90)

The Court stated without difficulty that the Applicants had satisfied the first component of the test, in that they each had a sincere religious belief that precluded them from providing effective referrals for abortion or MAID. Likewise, the fact that some Christian physicians did not share the beliefs of the Applicants was, in the Court’s view, irrelevant to the question of whether the Applicants’ beliefs were sincere (CMDS v CPSO, paras 94-95).

The remainder of the Court’s section 2(a) analysis focused primarily on the CPSO’s objections that, even if the two-part test from Amselem was met, the Applicants had not established (as per R v Edwards Books and Art Ltd, [1986] 2 SCR 713) that the state action in question amounted to a more than “trivial or insubstantial” interference with their religious convictions (CMDS v CPSO, para 96). On this point, the CPSO made several submissions, only some of which will be reviewed here.

The CPSO first argued that any interference with the Applicants’ freedom of religion must ipso facto be trivial or insubstantial because the Applicants were operating within the context of a regulated profession (CMDS v CPSO, para 100). The Court dispensed with this submission in short order, deciding that any disparity between the Applicants’ professional duties and religious convictions was a question better addressed in a section 1 proportionality analysis (CMDS v CPSO, para 101). The Court similarly rejected the CPSO’s arguments that an effective referral did not amount to a guarantee that a particular health service would be provided, finding that for some procedures (such as abortion or MAID) there would be many circumstances where there is “a very high probability that [patients] will receive the services upon referral” (CMDS v CPSO, para 104). Likewise, the Court rejected the CPSO’s position that providing an effective referral did not objectively amount to complicity or participation in a medical procedure, finding that to accept such a position would require the Court to become a subjective “arbiter of religious dogma” (CMDS v CPSO, para 108).

Finally, the Court rejected the CPSO’s submission that the policies were neither binding nor coercive and that, consequently, the “chilling effect” that had been raised by the Applicants was little more than a subjective fear. As normative expressions of professionalism, the Court concluded that the policies amounted to a “moral suasion … sufficient … to engage the provisions of section 2(a)” (CMDS v CPSO, para 110). Likewise, to the extent that the policies required objecting physicians to change the nature of their practice, the Court once again found this to be an objective burden best assessed under a section 1 proportionality analysis (CMDS v CPSO, para 112).

The Court thus concluded that the policies amounted to an infringement of section 2(a)’s guarantee of freedom of religion. Since the Applicants had only relied on their section 2(a) freedom of conscience claim in the alternative, the Court declined to address this issue (CMDS v CPSO, para 115-116).