Physicians and the Ontario Human Rights Code

Ontario Human Rights Commission attempts to suppress freedom of conscience (August-September, 2008)

Proposed Draft Policy of the College of Physicians and Surgeons of Ontario

Submission of the Christian Legal Fellowship

VIA EMAIL: policyfeedback@cpso.on.ca; afoti@cpso.on.ca

The College of Physicians and Surgeons of Ontario
80 College Street
Toronto, Ontario M5G 2E2

RE: Submission Regarding Proposed Draft Policy of the CPSO

To Whom It May Concern:

As there is no basis in the law or in the established policies of the OHRC, CMA, or CPSO for the draft policy, we respectfully request that the policy be rejected. If the CPSO desires a more detailed legal analysis of these issues, we would be willing to submit further information.

The recently proposed draft policy entitled "Physicians and the Ontario Human Rights Code"1 has come to the attention of the Christian legal community, whom by this letter wish to express disapproval with the policy's terms and to encourage its rejection by the College of Physicians and Surgeons of Ontario (CPSO).

The freedoms of religion and conscience are paramount to a functioning and stable society. As a result, these freedoms are protected by both international and national laws at the highest level.2 The Canadian Charter of Rights and Freedoms guarantees that religious and conscience rights are absolute unless limited in a manner that "can be demonstrably justified in a free and democratic society."3 The CPSO's proposed draft policy unreasonably interferes with these freedoms and lacks an adequate justification; therefore, it should not be implemented.

The laws of Ontario and the policies of the Canadian Medical Association (CMA) currently provide for a balance and compromise between the rights and needs of patients and the rights and responsibilities of physicians.4 By granting doctors the right to deny treatment in non-emergency situations on grounds of conscience, the CMA and CPSO uphold a healthy accommodation that protects the rights of all concerned, one that conforms to the 1996 Ontario Human Rights Commission's Policy on Creed and the Accommodation of Religious Observances.5 By altering the position of physicians' conscience rights, the CPSO would be in conflict with the venerable understanding of the law.6

The Human Rights Commission stated that when handling religious pluralism in society, "an informed spirit of tolerance and compromise is indispensable."7 In relation to the policy at hand, it appears that the CPSO has not acted with a spirit of tolerance as demonstrated by its poignantly drafted policy that unreasonably restricts physicians' freedoms of religion and conscience. In fact, the policy reaches to the heart of these freedoms and seems to affect no other interest substantially or positively, including the interest of greater patient access, which may explain why a percentage of Ontario physicians have stated their intention to leave the province or retire if the policy is implemented.8

The CPSO has issued statements claiming the draft policy is meant only to clarify the Ontario Human Rights Code9; however, the Code itself as well as prior statements and policies by the Ontario Human Rights Commission support the accommodation of physicians in declining non-emergency treatments,10 and the CPSO has itself made accommodations in the past to ensure that physicians and patients were equally protected.11

The recent submissions made by the OHRC to the CPSO seem to mark a change in interpretation of the law, and, unfortunately, the new interpretation is based on arguments that are circular, inconsistent, and contrary to the current rule of law.12 For instance, the submission claims it is "seeking to create a climate where the dignity of every person is recognized" and where "all persons can fully participate in society"13, yet the OHRC itself limits people, namely physicians, from fully participating in society by supporting a policy that restricts their freedoms of religion and conscience. Moreover, by refusing to define terms such as "dignity", the OHRC is limiting the discretion of both the CPSO and its doctors in formulating professional decisions.

As there is no basis in the law or in the established policies of the OHRC, CMA, or CPSO for the draft policy, we respectfully request that the policy be rejected. If the CPSO desires a more detailed legal analysis of these issues, we would be willing to submit further information.

Thank you for your attention to this matter.

Sincerely,
Ruth A.M. Ross, B.A., LL.B.
Executive Director - General Legal Counsel

Notes:

2. See Universal Declaration of Human Rights, art. 18, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948); Canadian Charter of Rights and Freedoms, s.2, CANADA ACT 1982 [U.K.] c.11; Ontario Human Rights Code, STATUTES OF ONTARIO, Ch. H19 (1990); Joint Statement on Preventing and Resolving Ethical Conflicts Involving Health Care Providers and Persons Receiving Care, CANADIAN MEDICAL ASSOCIATION (1998) [hereinafter Joint Statement].

3. Canadian Charter of Rights and Freedoms, supra note 2 at s. 1-2.

4. See Ontario Human Rights Code, supra note 2; Joint Statement, supra note 2; Policy on Creed and the Accommodation of Religious Observances, ONTARIO HUMAN RIGHTS COMMISSION, [hereinafter Policy on Creed].

5. Id.

6. See Submission, infra note 12; Brillinger v. Brockie, Ontario Superior Court of Justice, Divisional Court, [2002] O.J. No. 2375 where the Ontario Superior Court overturns a key aspect of the Human Rights Board of Inquiry Decision and recognizes a public space for persons to refuse to provide commercial services if doing so would conflict with the "core elements" of their religious belief or conscience. The court makes clear that "this order shall not require Mr. Brockie or Imaging Excellence to print material of a nature which could reasonably be considered to be in direct conflict with the core elements of his religious beliefs or creed."; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772. Note: Further study and a full analysis should be provided on the Trinity Western decision, as the Ontario Human Rights Commission's Submission of February 14, 2008 is misleading in its interpretation. The Supreme Court of Canada held that the college was wrong in rejecting Trinity Western on the basis of discrimination for including a code of biblical conduct and, moreover, that "the concern that graduates of TWU will act in a detrimental fashion in the classroom is not supported by any evidence."

7. Policy on Creed, supra note 4 at p. 16.

8. Danielle Wong, Docs fear consciences ignored in draft policy, WINDSOR STAR (August 27, 2008).

9. Id.

10. Policy on Creed, supra note 4 at pp. 5-8.

11. Ontario College of Physicians and Surgeons accommodates Christian physician (2002)

12. See Submission of the Ontario Human Rights Commission to the College of Physicians and Surgeons of Ontario Regarding the draft policy, "Physicians and the Ontario Human Rights Code", ONTARIO HUMAN RIGHTS COMMISSION (September 10, 2008); Submission of the Ontario Human Rights Commission to the College of Physicians and Surgeons of Ontario regarding the draft policies relating to establishing and ending physician-patient relationships, ONTARIO HUMAN RIGHTS COMMISSION (February 14, 2008) available at [hereinafter Submission]; Edward Tingley, Two Things to Know, Christian Medical and Dental Society; Brillinger v. Brockie, supra note 6; R. v. Big M Drug Mart (1985) 1 S.C.R. 295.

13. Submission, supra note 12.