With Ontario court's ruling on doctors, the revolution continues

There is a growing antipathy among Canadian elites against conscientious individuals who refuse to accept their views

National Post, 17 May, 2019

Reproduced with permission

Barry W. Bussey*

How is it that such a simple decision could be made so complicated? Given the history of accommodating individual conscience in the medical profession and in Canadian law, the case before the Ontario Court of Appeal to accommodate doctors' consciences was a "no-brainer." The law, history, and basic human decency cried out: "Accommodate the physician!" Instead, the highest court in Ontario followed the worrying legal revolution against accommodation and stomped on conscience. And it did so wrapped up in language that purported to support vulnerable patients.

The decision against physicians who, because of conscience, cannot assist in the intentional killing of a human being, pre- or post-birth, is a travesty of justice. It is wrong. It is wrong morally, ethically and legally.

The Ontario Court's decision is focused almost entirely on the hypothetical patient who cannot access "health services." Yet, there was not a single shred of evidence that showed even one person in Ontario wanted to end their life or the life of their pre-born child but was unable to get the "treatment" they wanted because of physicians' religious objections. The College of Physicians and Surgeons of Ontario (CPSO) did present evidence on appeal of a patient finding it challenging to obtain medical assistance in dying but that was not due to a religious conscientious objector. Not one. In fact, the Court of Appeal quoted from the Divisional Court that "there was no direct evidence that access to health care is a problem caused by physicians' religious objections to providing care" (emphasis added). So, where was the problem? Basic morals, ethics, and law say this is a "solution" without a problem. And yet the "solution" of non-accommodation was so vigorously defended by CPSO that it wound up in court. Why?

As far as I can tell, there is only one reason why this issue came to court. That is, there is a growing antipathy among Canadian elites against conscientious individuals who refuse to accept the elitist moral (or lack thereof) vision of how we ought to live. Some even go so far as to say that if anyone has religious scruples, they should not enter the professions. Really? We have come to that? A new orthodoxy has taken hold, and woe betide those who do not conform. As we saw with the Trinity Western University law school case, courts generally — and the Ontario courts particularly — appear to take a certain pride in being the legal vanguard of enforcing the secular orthodoxy.

Tellingly, one piece of evidence not mentioned by the Ontario courts in this case was an affidavit of I.M., an immigrant patient of one conscientious family doctor who would not refer her for an abortion. IM got the abortion as desired and returned to her doctor, relationship unimpaired, and still considered the doctor to be as close as family. That is what we would expect of any doctor: providing expert care for their patients even if they do not agree with the personal choices patients make. Where is the protection for these conscientious doctors who care?

We can anticipate more, not fewer, lawsuits of conscience. That is due to the fact that people of conscience are a tenacious bunch. They do not cower easily. The Wilson-Rayboulds and Philpotts of the world are courageous people. Personal expense is of no consequence for them, when they speak truth to power.

Liberal democratic societies owe much of our basic freedoms to people of conscience who have bravely resisted the dictates of those in power. Freedom of conscience is the very bedrock of all our freedom. It is the first freedom listed in the Canadian Charter, but it is now the first target of systematic erosion by our elites. Academics, the legal profession, and the media have become so zealously secular in their outlook that any objections to their positions — no matter how respectful or lawful — must be stopped at all costs. Given their masterful command of language, they beguile us into thinking we are doing right when we do wrong. For example, the physician's conscience becomes an issue of patient services; the religious university's support of traditional marriage interferes with equality; the religious group's refusal to be photographed for a drivers' licence is a matter of protection against identity theft; and it goes on.

Failure to accommodate conscience is a failure to govern. From the Sikh student wearing his kirpan to school to the Sabbatarian taking her holy day off to attend church, we have historically, as a country, been willing to accommodate diversity. But the increasingly strident legal revolution against accommodating conscience, particularly religious conscience, would force everyone into the same straitjacket of conformity. Such political, legal and social policies do not end well. The examples of such failures are too numerous to mention — Aleksandr Solzhenitsyn's Gulag Archipelago is enough.

Of course, patients who want medical assistance in dying will continue to obtain it and those wanting abortions similarly have access. The law permits both.

And until the recent legal revolution, the law also permitted conscientious objection through accommodation. The failure to protect conscience does not bode well for our collective freedom.