Physicians and the Ontario Human Rights Code

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

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Canadian Doctors Warned to "Set Aside" God's Law

The Chalcedon Foundation
9 September, 2008
Reproduced with permission

The above are excerpts from "Physicians and the Ontario Human Rights Code," a draft proposal by the Ontario College of Physicians and Surgeons supposedly intended to help physicians avoid running afoul of the provincial human rights commission. But critics say the real effect of the policy would be to force doctors to be party to actions they believe to be sinful.

The Canadian Medical Association says physicians have a right to refuse to participate in medical procedures-abortion, for instance-that violate their religious principles. So does the Ontario Medical Association, which has demanded that the College drastically amend its draft proposal.[2]

"There could be serious problems with what the Ontario College is proposing," said Dr. Will Johnston, president of Canadian Physicians for Life. "If doctors feel coerced into compromising their deepest convictions as a result of this policy, certainly that's a problem-not only for the integrity of the physicians, but also for the welfare of their patients."[3]

Just "Guidance"?

The immediate result of the controversy has been to persuade the College to extend to September 12 its deadline for receiving feedback from Ontario's physicians.

"All we're doing is reminding physicians that they have to comply with the law," said Kathryn Clarke, speaking for the College. "The Human Rights Code is the law, and it's not new. We just want to alert physicians as to their obligations under the law.

"We're only asking physicians to do three things: to communicate clearly, to treat patients with respect, and to provide information about accessing medical care-services that patients have a legal right to access. This last is the point we're getting the most feedback on."

A physician opposed to abortion, for example, would have to tell a patient seeking an abortion where and how she could get one. It is difficult for Christians to see how that would let them off the hook, morally. ("I can't help you to murder your baby, but there's a clinic just down the street where they will.")

"We're just providing guidance about the Human Rights Code," Clarke said. "These are all services that are paid for under Canada's public health care system. You're not obligated to provide the service, but we are setting out expectations about the way the patient should be treated."

With feedback from physicians pouring in, she said, the College council will study it before deciding whether to amend the document.

A Warning from Dr. Johnston

"It's just clumsiness," Dr. Johnston said. "They don't really know what they're doing. They're reacting to predictions that the human rights caseload in Ontario is about to skyrocket, and they want to be ready."

This summer new regulations went into effect to expand the powers of the Ontario Human Rights Commission. "Through outreach, cooperation and partnership the Commission aims to change systemic attitudes and build an active human rights culture," says an explanatory statement from the Ministry of the Attorney General of Ontario.[4] Plaintiffs will be able to take their cases directly to the Human Rights Tribunal rather than first going through the Human Rights Commission: "[B]ut once complaints are filed directly with the tribunal instead of the commission," the Toronto Star reports, "the number could soar [from about 150] to at least 2,700 annually," or more.[5]

"The College had better be careful not to take its cues from a problematic institution that may not last much longer," Dr. Johnston said. "More and more people are growing more and more irate over the abuses of the human rights commissions."

The College is involved, he explained, because medicine in Canada is a self-regulating profession, with a college of physicians in each of Canada's thirteen provinces.

"The college in Ontario is only one of thirteen," he said. "If we can stamp out this kind of thing in Ontario, the other provincial colleges will take notice. This is an ongoing struggle."

OHRC Chimes In

Meanwhile, the Ontario Human Rights Commission (OHRC) has issued a statement intended to help the College of Physicians draft its policy guidelines. For the full text of this statement, see http://www.ohrc.on.ca:80/en/resources/submissions/physur.

The Commission advises the College to stress "the obligations of doctors to ensure that they do not make professional decisions based on their personal moral or religious beliefs in a way that has a discriminatory impacts [sic] …" Any decision by a doctor not to do a procedure, not to accept a patient, or to end a physician-patient relationship, says the OHRC, may only be made "for non-discriminatory reasons."

"[A] physician's refusal to provide a service or accept a patient on the basis of a prohibited ground, such as sex or sexual orientation," says the OHRC, "is prima facie discriminatory, even if the refusal is based on the physician's moral or religious beliefs …" [emphasis added]. And, "Human rights protections are to be interpreted broadly, while defences for discrimination are interpreted narrowly"-which is to say that under this "human rights" regime, it's very easy to be accused and found guilty of discrimination, and very difficult to defend oneself.

The statement concludes, "It is the Commission's position that doctors, as providers of services that are not religious in nature, must essentially 'check their personal views at the door' in providing medical care."

Incredibly, the statement acknowledges that medical care in Canada is hampered by "doctor shortages and an aging and increasingly diverse society." Is an announced intention to persecute doctors for their religious beliefs a good way to alleviate a doctor shortage?

Invited by Chalcedon to respond to criticism of this statement, a spokesman for the OHRC said, "The Commissioner is not going to comment on this matter."

The Evolution of a Tyranny

Canada's human rights commissions and tribunals have become a law unto themselves. They are not bound by rules of evidence, precedent, or courtroom procedure. The state pays all the plaintiffs' legal costs, but defendants must pay their own. "Feelings" are accepted as evidence, and the "likelihood" of damages being incurred, at some indefinite time in the future, substitutes for real damages that can be shown to have been incurred.

"Commissions of Human Wrongs," by journalist Nigel Hannaford, is a study of the human rights agencies, commissioned by a Canadian think tank.[6] In addition to recommending the abolition of all the human rights commissions and tribunals, the study shows how they came to acquire so much power.

Laws passed by Canadian legislatures, and rulings handed down by Canadian courts, gave them that power.

For example, the Alberta Human Rights Code, as amended in 1996, forbids any speech or publication "likely to expose a person or class of persons to contempt"-a breathtakingly broad and indeterminate prohibition.[7] The federal human rights law is similar.

Human rights investigators, in a case heard by the Canadian Human Rights Commission this spring, "admitted using fictitious names to post provocative comments on a conservative website"-whose owner was then prosecuted for having those comments on his website![8]

The Canadian Human Rights Act permits "hearsay and conjecture" to be accepted as evidence in a human rights case.[9]

Court decisions have repeatedly affirmed the commissions' arbitrary procedures.[10] Even worse, the Canadian Supreme Court has ruled:

"Parliament's objective of promoting equal opportunity unhindered by discriminatory practices, and thus of preventing the harm caused by hate propaganda, is of sufficient importance to warrant overriding a constitutional freedom."[11]

This, in the words of a Canadian Supreme Court justice, puts the state in the position of "balancing the objective of eradicating discrimination with the need to protect free expression."[12]

Giving the state the power to "balance" rights gives the state the power to decide from case to case, from day to day, what "rights" are and who has them.

A Canadian's right to free speech may be overridden by the right of a gay activist not to be made to feel uncomfortable by anything his fellow citizens may write or say. A Christian doctor's right to refuse to assist in "same sex procreation"-using high technology to grow babies for adoption by pairs of sodomites or lesbians-may be trumped by the need felt by a same sex "couple" to have a child.

Canada's health care system pays for such procedures-and pays the physicians too, Dr. Johnston pointed out. "He who pays the piper calls the tune," he said. "The bureaucrats say, 'Now we're paying you, so now we can tell you what to do.'

"It's a delightful way to practice medicine, when the patient never has any anxiety about the cost of treatment. But the physician simply has less freedom under a government-paid system."

In Our Own Country …

Here in the United States, our Declaration of Independence tells us we are "endowed by our Creator with certain inalienable rights." The rights of Canadians appear to be acutely vulnerable to alienation. But how secure are ours?

The California Supreme Court on August 18 ruled that "two Christian fertility doctors who refused to artificially inseminate a lesbian have neither a free speech right nor a religious exemption from the state law that grants special rights based on sexual orientation," CitizenLink reports.[13]

The Ontario College of Physicians' draft proposal warns doctors that opposition "to same sex procreation for religious reasons … may be in breach of the Code." Here in California we have the state supreme court finding that it is in violation of the state's anti-discrimination laws.

Our First Amendment, with its guarantees of religious liberty and freedom of speech, has in this instance failed to protect American doctors from a situation that in Canada, where there is no First Amendment, has only been presented as a possibility, so far.

Meanwhile, just days after the California court ruling, the U.S. Department of Health and Human Services proposed a regulation to protect doctors who refuse to "perform or assist in the performance" of an abortion or any other procedure "that is contrary to [their] religious beliefs or moral convictions." Organizations that receive federal funds would be defunded if they tried to force doctors to perform or assist abortions.[14]

"Justice" without God

Christians practicing medicine in both the United States and Canada have reason to be confused about what rights they have. In America the state of California and the federal government seem to be on opposite sides of the issue. Which view will prevail?

But in Canada a citizen can never be sure, from day to day, what his rights are. The courts have given the state, in the person of the human rights commissions, the power to "balance rights" and decide whose rights matter most in any given set of circumstances. Protections enjoyed by a defendant in a criminal case in a regular court do not apply before a "human rights" tribunal-where any defendant's chance of acquittal approaches zero.

"Attempts to define justice apart from God's law-word lead quickly to relativism and positivism," R. J. Rushdoony writes.[15] Canadian law and government, self-consciously secular to the core, have attempted to do precisely that: and the result is confusion and uncertainty. Canadians no longer know what they are allowed to write or say, or which opinions will land them in front of a human rights tribunal.

In Canada the state has taken upon itself the godlike tasks of "eradicating" hate and discrimination, "changing systemic attitudes," and "building an active human rights culture," all without reference to God or His commandments. What could be more relativist than a judge or a bureaucrat "balancing rights"?

We find offensive the Ontario College of Physicians' repeated use of the words "personal beliefs" to describe a Christian's absolute obligation to obey the laws of God.

A "personal belief" is just that: something on the order of believing that eating peanut butter on a Monday is a mortal sin. We can set aside a "personal belief" without offending God; but we cannot under any circumstances set aside God's commandments.

The state cannot require us to assist someone in committing adultery, any more than the Sanhedrin could require Peter and John to stop preaching the gospel of Christ ("We ought to obey God rather than men" [Acts 5:29]); nor can it require a doctor to perform an abortion or help someone to obtain an abortion.

The state may attempt to do such things. The Ontario College of Physicians seems to expect it to do just that.

Maybe Dr. Johnston is right, and growing public outrage will sweep the human rights commissions out of existence. These commissions have been made the Canadian far left's instrument for reshaping society through intimidation. They have been set free from the rules that bind courts and law enforcement agencies, made independent of the government and not answerable to it. It's possible they have become too independent for the legislature's liking and that Dr. Johnson's prediction will come true.

But R. J. Rushdoony's predictions have already come true. A state that divorces itself from God's laws, that sees itself as sovereign rather than as the servant of a sovereign God, will quickly become unpredictable and capricious in its actions-in a word, tyrannical. And this is what Canada's "human rights" apparatus has become: an arbitrary little despotism operating under the cover of a democratic state.

We cover these Canadian events because, as our own state grows increasingly godless, increasingly grandiose in its pretensions, we can easily foresee the same kind of things happening here.

Fidelity to God's commandments, at all levels of society, will protect us.

Nothing else will.

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Notes

[1] "Physicians and the Ontario Human Rights Code"

[2] Charles Lewis, "OMA fears intrusion into MDs' beliefs," National Post, August 23, 2008.

[3] Canadian Physicians for Life press release, August 15, 2008.

[4] [Source]

[5] Tracey Tyler, "Righting a 'nightmare' system," Toronto Star, June 18, 2007.

[6] Nigel Hannaford, "Commissions of Human Wrongs," Frontier Centre for Public Policy, June 30, 2008, .

[7] Ibid., 6.

[8] Ibid., 7.

[9] Ibid., 10.

[10] Ibid., 11.

[11] Ibid., 12.

[12] Ibid., 17.

[13]"California Supreme Court Tramples Doctors' Religious Beliefs," CitizenLink, August 18, 2008.

[14]"Good News: Government Works to Protect Doctors' Religious Freedoms," CitizenLink, August 22, 2008, .

[15] R. J. Rushdoony, Sovereignty (Vallecito, CA: Ross House Books, 2007), 139.