More than 1,500 Ontario doctors object to a College edict privileging abortion and MAiD over conscience rights, arguing the order is the moral equivalent of requiring doctors to perform the acts, writes Peter Stockland. The ruling threatens Charter guarantees that every Canadian has the fundamental right think and believe freely.
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Imagine being a feminist physician unshakeable in your conviction that girls and women must be protected from patriarchal oppression.
Now picture being asked to assist with a sex-selection abortion because daddy doesn’t want a female child and mother consents to his wishes.
Up until 12 days ago, reasonable Canadians would concur that you had every right to politely decline to participate in any way in what your conscience told you was gender violence inherent in sex-selection abortion. Even today, they might think you still have that right. They would be wrong, at least if you’re an Ontario doctor.
As the result of a recent Ontario Court of Appeal ruling, you would be out of luck.
You would not be legally compelled to perform the abortion. But you would be legally bound to provide the family with an “effective referral” to another physician regardless of your deeply-held belief that doing so made you complicit in the selective aborting of females because they are female.
An unimaginable violation of conscience rights that are guaranteed by Canada’s Charter of Rights and Freedoms? Not according to the belief system of Chief Justice George Strathy, who held that the public interest in having accessible health care outweighs the religious or conscience freedoms of doctors who work in the public health-care system.
“Given the importance of family physicians as ‘gatekeepers’ and ‘patient navigators’ in the health-care system, there is compelling evidence that patients will suffer harm in the absence of an effective referral,” Strathy said.
Never mind that if someone asked you to patiently navigate their head into a lion’s mouth at the zoo and you refused, most Canadians would hail you as a person of common sense, sound judgement and moral fibre. But no.
Abortion is not a legal right, but it is not prohibited, either. What is not prohibited, it appears, is now obligatory. And since 2016, when medically-delivered death – also known as Medical Aid in Dying – became legal, what is allowed by law is apparently an über alles entitlement regardless of whether Charter rights are trampled.
“The whole point of the Charter was to provide the individual with protection against the overwhelming force of the State or State actors,” says Nicole Scheidl, executive director of Canadian Physicians for Life.
“Now it’s being turned on its head and used to go after people whose views might not be accepted by the majority, and particularly a majority that holds power. It’s the tyranny of the majority where you have this suppression and destruction of the individual that is really dangerous,” Scheidl adds.
Canadian Physicians for Life, the Christian Medical Dental Association, the Canadian Federation of Catholic Physicians’ Societies, and several individual doctors have been locked in a legal dispute with the College of Physician and Surgeons of Ontario. The groups, collectively representing more than 1,500 Ontario doctors, object to a College edict privileging abortion and MAiD over conscience rights. They argue the order is the moral equivalent of requiring doctors to perform the acts.
The Appeal Court sided with a lower court decision rejecting that argument.
Scheidl said it will likely be two months before there’s any final decision on whether to appeal the case to the Supreme Court. The immediate task now, she says, is to get clarity from the College and the Ontario government on what the judgement means in practical terms.
“(The judgment) says in one paragraph that it’s not professional misconduct (to refuse a referral) but then it says (refusal) can be used as evidence of professional misconduct. I’m not sure where the Court was going with that, and how it would play out in an actual case.”
While the legal beagles run around in ever-diminishing circles going yip-yip-yip, the ruling as read raises troubling questions for all ordinary Canadians. It might seem of concern only to a subset of the minority of citizens who are publicly religious or exist outside mainstream opinion on hot buttons such as abortion and MAiD.
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The onslaught against conscience is gaining momentum. It threatens Charter guarantees that every Canadian has the fundamental right think and believe freely.
It’s precisely because what we think and believe can change over time collectively, though not necessarily individually, that compulsion by “public interest” can become so perilous.
“Who decides what’s in the public interest and what isn’t? What is the level of evidence that has to be shown? There was no evidence in this case that people were not able to access what they wanted because of religious or conscientious objections. The Court just decided it’s logical that it provides an impediment.”
So, for instance, what happens when the wheel turns and it’s our feminist physician fighting for her Charter right to conscientiously object to any level of involvement in a sex-selective abortion?
“At different times in history, certain perspectives are acceptable, and then they’re not,” Scheidl notes. “Do we, in a Western democratic society, say, well, let’s discuss how to deal with these issues? Or are we going to suppress any kind of expression of an opposite viewpoint to the extent that you cannot really live, you cannot really pursue your profession, you can’t take part in civic dialogue, because we don’t approve of what you think or how you speak?”
Imagine Canadians having to ponder that question at this point in our Charter-guaranteed democratic life.
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Tomorrow, Prime Minister Trudeau offers an unprecedented apology to persecuted members of sexual minorities. On Thursday, Trinity Western University is before the Supreme Court of Canada arguing for its religious freedom. Having previously presented TWU's perspective, Convivium asks lawyers Mark Berlin and Douglas Judson about sexual politics and the law.
Premier Alison Redford last week attacked the Wildrose platform for promising to protect conscience rights by letting health care professionals and marriage commissioners go to court for legal exemptions from, say, performing abortions, dispensing contraceptives, or officiating at same-sex weddings
In the second of his two-part Convivium essay, Don Hutchinson details how the recent Supreme Court decision on Trinity Western University puts Canada on an enigmatic path toward an ill-defined ideal of diversity – and puts foundational democratic principles at risk.
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