Religion and the Law: “Respect” or Denial?

In Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, the Ontario Court of Appeal sought to reconcile the religious views of doctors opposed to carrying out certain procedures with the rights of patients to equitable access to those procedures and to the public interest. Under Bill 21, the Quebec government seeks to deny the wearing of certain “religious” clothing in the interests of preserving a secular society. A comparison of these two situations help to illustrate how private religious beliefs might play out in the public sphere.

The College of Physicians and Surgeons of Ontario, the self-governing regulatory body for the medical profession, enacted two policies designed to ensure patients received equitable access to healthcare when doctors refused to undertake procedures or provide pharmaceuticals because doing so would be against their religious beliefs.or on conscientious grounds. Policy #2-15 (“Professional Obligations and Human Rights”, 2015) provides that objecting doctors are to make effective and timely referral to another health-care provider, clarifying that “An effective referral means a referral made in good faith, to a non-objecting, available, and acessible physician, other health-care professional, or agency.” With the advent of medically-assisted dying in 2016, the College issued another policy, #4-16, “Medical Assistance in Dying”, which similarly required an effective referral when a doctor objected to participating in MAiD.

Three organizations representing physicians and five individual physicians brought applications in the Divisional Court, maintaining that the policies infringed their freedom of conscience and religion under section 2(a) and religious equality under section 15(1) of the Canadian Charter of Rights and Freedoms. The Divisional Court dismissed their claims, holding that while the applicants’ freedom of religion was contravened by the policies, the policies were justified under section 1 of the Charter, and that their freedom of religion under section 15(1) had not been contravened. The Ontario Court of Apppeal upheld the Divisional Court’s decision.(Omar Ha-Redeye considered the two decisions on Slaw here.)

In 2014, the Ottawa Citizen reported that several doctors operating out of a medical centre advised patients that they would not prescribe birth control pills or any form of contraception. CTV News carried a story, also in 2014, about a Calgary doctor who worked in a walk-in clinic and also refused to prescribe birth control; if she was the only doctor on site, a notice informed walk-ins that they could not obtain contraceptives that day. With the College’s policy #2-15, doctors are no longer able to refuse to provide health care to patients because they believe their own religious beliefs have a priority over patient care. This policy also covers procedures such as “abortion, contraception (including emergency contraception, tubal ligation, and vasectomies), infertility treatment for heterosexual and homosexual patients, prescription of erectile dysfunction medication, [and] gender re-assignment surgery” (Christian Medical and Dental Society, CA, para.121), to which all or some of the applicants objected performing. As indicated, Policy #4-16 addresses MAiD.

In considering the applicants’ objections, both courts acknowledged that the Policies infringed on the applicants’ religious beliefs in more than a “trivial or insubstantial” manner, despite the College’s argument otherwise. For objecting doctors, the required referral makes them complicit in undertaking the procedures or prescribing the pharmaceuticals, or being an accessory to them (Christian Medical and Dental Society, CA, para. 9). They did propose alternatives, the so-called “self-referral” model. However, these alternatives, which involved patients themselves navigating the system through Telehealth or through the province’s Care Coordination Service (created to provide assistance in relation to MAiD), for example, handed accessing the services to patients. For the organizations and the doctors, “Providing readily-available, generalized health care information and a referral to the [Care Coordination Service], Telehealth or other informational resources strikes a reasonable balance between religious freedom and equitable patient access to health care.” (Christian Medical and Dental Society, CA, para. 53). Yet for at least some physicians objecting to providing services would also object to providing telephone numbers for these services or the addresses of doctors willing to provide services (Christian Medical and Dental Society, CA, para. 128, citing Divisional Court, para. 170).

The courts refused to accept these alternatives because, they said, they were designed to achieve the doctors’ objective, not the College’s objective in ensuring an equitable health care system that put patients’ interests first. In at least one commentator’s view, it is the religious objections that should take primacy or, in his words, the outcome when doctors refuse to provide services to patients on religious grounds, should be “‘accommodate the physician'”, a “‘no-brainer'” answer. (See Barry W. Bussey, “With Ontario court’s ruling on doctors, the revolution continues (National Post, May 17, 2019), available in the print edition as “Freedom of Conscience Systematically Eroding, National Post (May 21, 2019) A9). Bussey points out that there was no actual evidence of a patient’s not being able to obtain these services and he attributes the decisions to “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”. He is critical of recent decisions that do not give primacy to religious views: “the physician’s conscience becomes an issue of patient services; the religious university’s support of traditional marriage interferes with equality [Law Society of British Columbia v. Trinity Western University (SCC); the religious group’s refusal to be photographed for a drivers’ licence is a matter of protection against identity theft [Alberta v. Hutterian Brethren of Wilson Colony (SCC)….”

The issue the Christian Medical and Dental Society raises is the place of religious belief in the public square and the extent to which its private expression impacts on the provision of public services to which other members of society are entitled. In this case, doctors with certain religious beliefs that conflict with services that patients are entitled to receive from their health professionals, or that patients expect their doctors will help them obtain, wish to shift the burden to the patients. Patients might expect that doctors who have, in effect, signed on to provide health services will provide those services subject to the usual caveats recognized in provision of healthcare. They might expect that they will not have to navigate the healthcare system themselves when the system is premised on the locus of patient care is in the family doctor (albeit that goal is not always achieved). These patients, however, would be disappointed because when doctors have religious (or conscientious, potentially an extremely broad basis of) objections, their doctor will not be required to provide the services.

This is because Bussey’s view that the doctors should be “accommodated” is in fact the view required by the law and it is why the College has developed its Policies. However, not surprisingly, “accommodation” is susceptible to different interpretations. The doctors start from a position that is different from that of patients and of the equitable and accessible principles underlying the health care system. The doctors are seeking an exception to the general requirements of the College for doctors providing healthcare. In its document entitled “You and Your Doctor“, the first expectation the CPSO tells patients they are entitled to have is that the doctor will “[a]lways act in your best interests”. This is consistent with the fiduciary relationship between the doctor and the patient (CPSO, Practice Guide/a>, p.5; Norberg v. Wynrib, SCC). It is consistent with the values the Practice Guide articulates. For example, one value is altruism and it requires,

Patients’ needs are paramount and must be considered before the individual physician’s needs, the needs of physicians as a group, or the public as a whole. This is not to say that physicians must sacrifice their health or other important aspects of their life for their patients. Rather, it means that when providing care to a patient, a physician should always put that patient first. (Practice Guide, p.4)

At the same time, the CPSO recognizes that doctors may hold beliefs that consider certain medical procedures to be morally wrong and that the law requires them to be accommodated. The Policies are an attempt to respect those views and relieve doctors from the obligation to perform them, while at the same time ensuring that the commitment to patient care is still maintained to the extent possible. Accommodation means that both parties may have to compromise or change their behaviour or to accept that they won’t always get what they want.

In a society that recognizes individual religious belief, this may mean that others’ access to services may be at least somewhat more difficult in order to accommodate those whose religious beliefs require them to deny access to particular services.The referral obligations, while not perfectly responding to those who have strong religious objections to providing services, can take a variety of forms that minimize the direct involvement of the doctors in the provision of the services. For patients, this may mean going to another doctor or health practitioner; it may mean at least some delay in obtaining services; it may, depending on residence, require greater time and cost in transportation, or for some, language difficulties. For example, “issues of reproductive health [which lie at the heart of objecting doctors’s concerns] are particularly impactful for new immigrants, youth, Indigenous women, women in remote or rural communities and people with limited economic means” and among other effects, patients may feel shame and guilt when their doctors refuse these services (Christian Medical and Dental Society, CA, paras. 145-146). No one has things their own way, but the Policies are designed to ensure that the primary objective of equitable and accessible healthcare is preserved to the extent possible, while also providing alternatives to objecting doctors to the extent that it does not undermine the primary objective significantly.

The decision in Christian Medical and Dental Society, although viewed by some as unsatisfactory, seeks to acknowledge and permit doctors whose religious beliefs lead them to refuse to provide healthcare services to which their patients are entitled to observe those beliefs to the point at which the purposes underlying the healthcare system would be undermined. Complete freedom to refuse to provide a means by which these services would be available could result in harm.

In contrast, Quebec’s Bill 21, An Act respecting the laicity of the State, prohibiting the wearing of religious symbols/clothing when providing certain public services, makes little attempt to accommodate religious belief. At most, it will not apply to current employees unless they move into a different position. Yet the “harm” of allowing the wearing of religious symbols is abstract at best (suggesting that the state is exhibiting religous belief), while the harm to public servants who do not renounce religious display is potentially loss of employment (a teacher who moves to another school must make the choice and those not yet employed will not be), as well as a statement that religious expression is wrong.

Bill 21 affirms the “laicity of the State”, which is based on four principles:

(1) the separation of State and religions;
(2) the religious neutrality of the State;
(3) the equality of all citizens; and
(4) freedom of conscience and freedom of religion.

In practice, this means prohibition against wearing religious symbols, but also a framework for dealing with requests for accommodation on religious grounds. Section 6 states that certain “persons … are prohibited from wearing religious symbols in the exercise of their functions” and those providing services must do so with their faces uncovered. Similarly, people who wish to receive a service must have their face uncovered “where doing so is necessary to allow their identity to be verified or for security reasons”. There are exceptions when someone covers their face for health reasons or disability (or as required to perform a task as part of their function). Under section 15, collective or other agreements that contain contrary provisions are null. Despite the reference to accommodation, section 13 provides,

13. No accommodation or other derogation or adaptation, except those provided for in this Act, may be granted in connection with the provisions concerning the prohibition on wearing religious symbols or concerning the obligations relating to services with one’s face uncovered.

Although the crucifix will be removed from the Quebec National Assembly after the passage of Bill 21, section 16 nevertheless provides protection for Quebec’s heritage as it may be represented in religious configuration: “This Act must not be interpreted as affecting the emblematic or toponymic elements of Québec’s cultural heritage, in particular of its religious cultural heritage, that testify to its history.”

The bodies subject to the requirements are parliamentary (the National Assembly), government and judicial institutions. Government bodies include government departments and certain agencies related to collective bargaining; bodies funded through the budget and whose employees are appointed under the Public Service Act; municipalities and related bodies (except identified Indigenous communities); public transit authorities; school boards and vocational and university level institutions; public health and social service institutions (and certain private institutions); those of which the majority of members are appointed by the National Assembly; public inquiry commissions; public childcare centres; and private education institutions receiving subsidies or of which the curriculum is the subject of an international agreement.

Bill 21 also identifies who is subject to the prohibition: the President and Vice-Presidents of the National Assembly; personnel related to the courts (including sheriffs and clerks); members or commissioners of various bodies, such as the Administrative Labour Tribunal and public inquiry commissioners (as well as lawyers or notaries acting for public commissions); arbitrators appointed under the Labour Code; the Minister of Justice and Attorney General and other related officials, including lawyers, notaries and prosecutors; other lawyers and notaries acting in a public capacity, including providing legal aid; police officers; and principals, vice principals and teachers. Many of these people are responsible for ensuring that those receiving services also remove face coverings as required, as are physicians, dentists and midwives who practise in a public institution and “persons recognized as subsidized home childcare providers under the Educational Childcare Act“.

Although there are some caveats, Bill 21 applies to just about anyone who provides services in public or quasi-public institutions and, in a more limited way, to just about anyone who seeks services from them, something that may not be clear in reports referring to what are considered the most significant groups of employees, such as teachers or police. It is important to appreciate that, for example, the presiding officer of the “state” political body, the National Assembly, cannot be someone who wears a kippa, turban or hijab. While actually affecting few people, and therefore appearing less significant than the impact on many others, this restriction constitutes an important statement about who is accepted as a citizen of Quebec.

Some of the organizations affected have criticized the Bill, such as Quebec’s largest school board (at least as it affects teachers) and the mayor of the city of Montreal who commented during consultations on the Bill on the disparate impact on immigrant women and their employment opportunities. The Montreal English School Board has said it will not comply with the law if it is passed and the English boards more generally argue they are not subject to the law.

The purpose of Bill 21 is ostensibly to ensure a secular Quebec, a separation of the church, temple, mosque and other organized religions and the state. On this view of secularism, not only is there not a “state religion”, but the state should not be seen to permit religious expression in the delivery of state functions. Clearly, Bill 21 contravenes the Canadian Charter of Rights and Freedoms, except that the Bill invokes the notwithstanding clause, and the Quebec Charter of Human Rights and Freedoms, except that the latter is amended to prevent a finding that the Bill contravenes it. (On the notwithstanding clause, it has been argued that because section 28 of the Charter [“Notwithstanding anything else in this Charter, the rights and freedoms in it are guaranteed equally to male and female persons.”] is not subject to section 32’s override, a challenge on the basis that Bill 21 would have a disproportionate impact on Muslim women might provide a detour around section 32.)

Both the College of Physicians and Surgeons of Ontario’s Policies requiring doctors objecting to providing certain services on religious grounds to provide referrals to non-objecting doctors or agencies and the finding in Christian Medical and Dental Society they are justified under section 1 of the Charter are seen by some as repressing freedom of religion. The purpose of Bill 21 is to deny religious expression in the public sector. Are they, indeed, the same? What does each of them say about the role of law in religion and the public sphere?

The Policies, on the one hand, and Bill 21, on the other, say very different things about how the law should treat religion in a secular society. (Canada generally is a secular society, although imperfectly so, and secularism is fundamental to Quebec’s identity.)

The Policies seek to acknowledge doctors’ religious beliefs, attempting to find a compromise that protects religious belief while still providing patients with an equitable and accessible healthcare system. The Policies are a compromise between the assertion of private religious belief in a public realm and access by the majority who do not share those views to the care that realization of the private beliefs would deny. They provide a path for most doctors to act on their religious beliefs and still maintain their position in the healthcare system. Although some would say otherwise, the Policies reflects respect for religious beliefs even when they present a potential barrier to accessing a significant public service, but in doing so, they ensure that the private religious beliefs do not significantly harm others.

Bill 21 does the opposite. It denigrates the expression of religious belief even when it does not interfere in a practical way with the provision of services; the fact that one employee wears a hijab and another a kippa does not imbue the state with their religious beliefs. (I might argue it would be otherwise were someone providing government services to place a cross on the wall of their private office.) Bill 21 denies the legitimacy of holding and expressing those beliefs, even when they do not affect others.

The law in Canada (and in Quebec), as long as it is not overriden, provides for freedom of religion as long as it does not interfere with the functioning of society. In practice, that may raise complicated questions. However, here the Policies illustrate how this can be met with only a minor limitation on the freedom (albeit too minor for some, too much for others), while Bill 21 is contrary to the legal principles underlying religious expression and the state. The Policies have as their objective integration, Bill 21 exclusion.

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