CMDS v CSPO (Part 2): ONSC Weighs Religious Physicians’ Charter Claim

On January 31, the Ontario Superior Court (“ONSC”) released its decision in Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario. In the first half of this two-part post, I provided a summary of the facts of the case and analyzed the Court’s reasons on standard of review and the Applicants’ section 2(a) claim. In the second half of this post, I assess the Court’s reasons on section 15 as well as its section 1 Oakes analysis.

The Applicants’ Section 15 Claim

After finding that the policies infringed section 2(a) of the Charter, the Court next turned its attention to the Applicant, Christian Medical and Dental Society (“CMDS”), and their claim that the policies also violated their equality rights under section 15. The Court adopted the Supreme Court of Canada’s (“SCC”) most recent section 15 framework from Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 [Taypotat], which articulated the following two-part test:

1. Whether, on its face or in its impact, a law creates a distinction on the basis of an enumerated or analogous ground; and
2. Whether the impugned law fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage. (Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579, para 118) [CMDS v CPSO]

With regard to the second component of the Taypotat test, the Court relied heavily on Chief Justice McLachlin’s earlier reasons from Quebec (Procureur Général) v A, 2013 SCC 5 [Quebec v A]. In particular, the Court highlighted the Chief Justice’s comments that a law will fail to respond to the needs and capacities of a group when it promotes or perpetuates prejudice or false stereotyping (CMDS v CPSO, para 119).

Curiously, the Court declined to consider the first stage of the Taypotat framework on the basis that the second component of the test had not been made out. The Court focused primarily here on three points: first, the Applicants were, by their own concession, not members of a historically disadvantaged group; second, the policies represented “an attempt to take into account the actual circumstances of religious physicians”; and third, the Applicants had no constitutional right to practice medicine (CMDS v CPSO, para 129).

On this first point, the Applicants argued that the policies imposed a burden on objecting religious physicians that was not imposed on other physicians and in a manner that suggested that religious physicians were “unable to practice modern medicine and care for their patients because of their backward and unreasonable religious beliefs” (CMDS v CPSO, paras 124, 127). Although the Court noted that historical disadvantage was not always necessary to make out a finding of discrimination, it rejected the Applicants’ claim that they were being subjected to coercive prejudice (CMDS v CPSO, para 128).

The Court grounded this finding in its second point that the policies represented an attempt by the respondent, College of Physicians and Surgeons of Ontario (“CPSO”), to balance the rights of religious physicians against the right of patients to equitable access to health care. The fact that this balancing was not to the satisfaction of all religious physicians was not determinative: in the Court’s view, “[t]he evidence establishes that these arrangements do respond to the concerns of many other physicians who raise religious or conscientious objections to the provision of such services” (CPSO v CMDS, para 129, emphasis added). The Court further found that any burden imposed against religious physicians by the policies pursued “an ameliorative purpose or effect … for patients who are members of vulnerable or disadvantaged groups” (CMDS v CPSO, para 130).

Finally, the Court found that the Applicants were not being barred from “access to a fundamental social institution” or “[impeded from] full membership in Canadian society” since no free-standing constitutional right to practice medicine exists. Any burdens imposed by the policies, the Court emphasized, “pertain ultimately to the nature of [the] practice of medicine” (CMDS v CPSO, para 131). The Court concluded its section 15 analysis by juxtaposing the case against Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 which it described as also involving “a neutral and rationally defensible policy choice” (CMDS v CPSO, para 132), even though the SCC in that case declined to substantively consider the Applicants’ section 15 rights.

The Court’s Section 1 Oakes Analysis

Having found that the policies infringed the Applicants’ right to freedom of religion under section 2(a) of the Charter, the Court next moved on to consider whether this infringement could be demonstrably justified under the SCC’s section 1 framework from R v Oakes, [1986] 1 SCR 103 [Oakes]. The Court concluded in short order that the policies pursued an objective “of sufficient importance to warrant overriding the [Applicants’] rights of religious freedom”, namely, “physicians’ professional and legal obligations” and, more essentially, “the protection of the public, the prevention of harm to patients, and the facilitation of access to care for patients in our multi-cultural and multi-faith society” (CMDS v CPSO, paras 144-145).

In considering whether the specific means adopted by the policies were rationally connected to their objective, the Court rejected the Applicants’ arguments that effective referrals are not necessary to promote equitable access to health care. As the Court explained, such considerations are better-assessed under the umbrella of minimal impairment.

In framing its minimal impairment analysis, the Court adopted Chief Justice McLachlin’s statement from Hutterian Brethren that the primary question to be answered at this stage of Oakes is “whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner” (CMDS v CPSO, para 164). On this point, the Applicants proposed two policy alternatives which they argued would be less impairing of the rights of religious physicians while substantially achieving the same objective: 1) a requirement that only compelled physicians to provide information—rather than a referral—on how to access health services; and 2) a central-coordinated care service (including a MAID hotline) similar to those that have been established in other provinces such as Alberta (CMDS v CPSO, para 165).

The Court dismissed each of the Applicants’ proposed substitute policies, finding that the CPSO had reasonably considered and rejected each of these alternatives. The Court afforded considerable deference to the CPSO on this point, concluding that the principal circumstances of the case disclosed that “a legitimate issue of access to health care, including in particular equitable access to health care, would reasonably arise in the absence of the effective referral requirements” (CMDS v CPSO, para 167).

Crucially, the Court accepted the CPSO’s arguments on this point despite its acknowledgement that “there is no study or direct evidence that demonstrates that access to health care is, or was, a problem that was caused by physicians objecting on religious or conscientious grounds to the provision of the referrals for their patients” (CMDS v CPSO, para 147). On the issue of access, the Court further concluded that the Applicants’ proposed alternatives had failed to balance their claim to freedom of religion against the Charter rights of patients to equitable access to health care (CMDS v CPSO, para 171).

The Court similarly rejected the Applicants’ argument that “the fact that certain other jurisdictions in Canada do not require physicians to take direct or indirect steps to assist patients where they have a religious or conscientious objection to a medical procedure is evidence that the requirements of the Policies are not minimally impairing” (CMDS v CPSO, para 172). In the Court’s assessment, many of these other policies, although using different language, practically imposed the same burden on religious physicians (CMDS v CPSO, para 173).

Yet even if this had not been the case, the Court reasoned, the fact that other Canadian jurisdictions had adopted policies that were arguably less restrictive of religious physicians’ rights did not compel the CPSO to implement similar policies. Drawing on the SCC’s reasons from RJR-MacDonald v Canada (Attorney General), [1995] 3 SCR 199, the Court concluded that the CPSO had sufficiently demonstrated that the impugned policies fell “within the range of reasonable alternatives” (CMDS v CPSO, para 174).

At the final stage of the Oakes test, the Court focused primarily on the salutary benefits the CPSO claimed would be realized from the policies’ continued implementation. As with minimal impairment, the Court accepted the CPSO’s submissions that without the effective referral requirement, patients ran the serious risk of receiving delayed access to medical services, loss of eligibility for their desired service, or denied care altogether (CMDS v CPSO, para 181).

Although the Court acknowledged that the policies may compel religious physicians to abandon the medical profession, it once again emphasized that the Applicants had no free-standing constitutional right to practice medicine (CMDS v CPSO, para 196). Moreover, because “physicians in Ontario practice in a single payor, publicly funded healthcare system,” the Court concluded that physicians are under a professional obligation “to place the interests of their patients ahead of their own personal interests in the event of a conflict” (CMDS v CPSO, para 197).

On this basis, the Court determined that any deleterious effects experienced by the Applicants were outweighed by the policies’ salutary benefits. In arriving at this conclusion, the Court further emphasized that number of physicians likely to be adversely impacted by the policies would likely be low, given that the CPSO had released a “Fact Sheet” outlining several alternatives to effective referrals for physicians working in an institutional setting. Consequently, the Court concluded, the only religious physicians who would likely be forced to change their practice would be those “who do not practice in a hospital, a clinic or a family practice group, or who do practice in such a setting but believe that the options presented in the Fact Sheet do not satisfactorily answer their concerns” (CMDS v CPSO, para 205).

Assessing CMDS v CPSO

CMDS v CPSO’s liberal interpretation of the scope of section 2(a) of the Charter is encouraging, as is the breadth with which the Court engages with the Applicants’ concurrent section 15 claim. Nevertheless, the Court’s reasoning is marred by a fundamentally flawed application of the current section 15 test. Although the revised test established by the SCC in Quebec v A and rearticulated in Taypotat emphasized the need for a “flexible and contextual inquiry”, the Court’s reasoning in CMDS v CPSO relies on rigid, formalistic assumptions about what is needed in order to establish a section 15 claim.

In Withler v Canada (Attorney General), 2011 SCC 12 [Withler], the SCC emphasized that certain factors (including pre-existing disadvantage) will be helpful in a contextual section 15 analysis. However, as the SCC went on to explain, these factors “need not be expressly canvassed in every case in order to fully and properly determine whether a particular distinction is discriminatory” (Withler, para 66). Despite paying lip service to this proposition, the Court in CMDS v CPSO rejected the Applicants’ section 15 claim on the grounds that they had been unable to establish the contextual factors of historical disadvantage, prejudice or stereotyping. Such a formalistic understanding of section 15 should be a significant cause for concern for advocates of a purposive interpretation of the Charter’s guarantee of equality.

The Court’s reasoning on section 1 is similarly undermined by an overly deferential application of the Oakes test. While the Court’s decision to eschew the comparatively amorphous test from Doré v Barreau du Québec, 2012 SCC 12 [Doré] is laudable (a preference which may have in part been fuelled by the Ontario Court of Appeal’s recent criticisms of Doré’s reliance on Charter values), its reasons on proportionality unnecessarily minimize the weight of the government’s evidentiary burden.

In particular, the Court’s deference to the government on the issue of access to care is puzzling, especially given the CPSO’s inability to adduce empirical evidence demonstrating that allowing religious physicians to opt out of providing effective referrals would perpetuate inequitable access to health care. While some deference must admittedly be owed to the government when assessing complex regulatory schemes, the Court’s reasons largely evade the countervailing evidence that most other Canadian jurisdictions have achieved equitable care access in the absence of an effective referral requirement.

More disconcertingly, however, the Court’s reasons on proportionality suggest that it is the burden of individual physicians to balance their Charter rights against the rights of patients to receive equitable access to health care. On its face, this proposition contradicts the SCC’s statement in Carter v Canada (Attorney General), 2015 SCC 5 [Carter] that:

a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief. In making this observation, we do not wish to pre-empt the legislative and regulatory response to this judgment. Rather, we underline that the Charter rights of patients and physicians will need to be reconciled. (Carter, para 132, emphasis added)

While implicit, the SCC’s stance in Carter seems to be that governments—not individuals—bear the burden of reconciling competing Charter interests. Consequently, the mere fact that physicians administer government-funded services should not minimize the weight or scope of their rights under the Charter. On the question of proportionality, the Court’s formalistic dismissal of the Applicants’ submissions on section 15 is especially illuminating: by limiting the scope of the Applicants’ claim to equality, the Court ultimately curtailed the conceptual weight of the policies’ deleterious effects under section 1. Indeed, it is difficult not to wonder whether the Court’s proportionality analysis would have been decided differently had it found that the Applicants’ Charter rights had been concurrently infringed under both section 2(a) and section 15.