Physicians and the Ontario Human Rights Code
Ontario Human Rights Commission attempts to suppress freedom of
conscience (August-September, 2008)
Canadian Doctors Warned to "Set Aside" God's Law
The Chalcedon Foundation
9 September, 2008
Reproduced with permission
If physicians have moral or religious beliefs which affect or may
affect the provision of medical services, the College advises physicians
to proceed cautiously … [T]here will be times when it may be necessary
for physicians to set aside their personal beliefs in order to ensure
that patients or potential patients are provided with the medical
treatment or services they require …
[D]ecisions to restrict
medical services offered, to accept individuals as patients or to end
physician-patient relationships that are based on moral or religious
beliefs may contravene the Code, and/or constitute professional
misconduct … For example, a physician who is opposed to same sex
procreation for religious reasons and therefore refuses to refer a
homosexual couple for fertility treatments may be in breach of the
-The Ontario College of Physicians and Surgeons
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.
"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."
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
"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
"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.
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.
"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
"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
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
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
"Commissions of Human Wrongs," by journalist Nigel Hannaford, is a study
of the human rights agencies, commissioned by a Canadian think tank.
In addition to recommending the abolition of all the human rights
commissions and tribunals, the study shows how they came to acquire so much
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.
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!
The Canadian Human Rights Act permits "hearsay and conjecture" to be
accepted as evidence in a human rights case.
Court decisions have repeatedly affirmed the commissions' arbitrary
procedures. 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
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."
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
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
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
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.
"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.
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
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
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
Nothing else will.
"Physicians and the Ontario Human Rights Code"
 Charles Lewis,
fears intrusion into MDs' beliefs," National Post, August 23,
 Canadian Physicians for Life press
release, August 15, 2008.
 Tracey Tyler,
"Righting a 'nightmare' system," Toronto Star, June 18, 2007.
 Nigel Hannaford,
"Commissions of Human Wrongs," Frontier Centre for Public Policy, June
30, 2008, .
 Ibid., 6.
 Ibid., 7.
 Ibid., 10.
 Ibid., 11.
 Ibid., 12.
 Ibid., 17.
Supreme Court Tramples Doctors' Religious Beliefs," CitizenLink, August
News: Government Works to Protect Doctors' Religious Freedoms,"
CitizenLink, August 22, 2008, .
 R. J. Rushdoony, Sovereignty
(Vallecito, CA: Ross House Books, 2007), 139.