Features
Speaking power to truth
By Benjamin Turner

Hardcopy Issue Date: October 2008
Online Publication Date: Sep 16, 2008, 10:42

Ontario HRC and College of Physicians assault freedom of conscience

The success of Canada’s ‘Human Rights’ commissions and tribunals against ordinary citizens, Christians in particular, is by now a well-established trend. No surprise then that Ontario has restructured its apparatus to encourage a twenty-fold increase in complaints adjudicated. What may be a new development is the willingness of at least one professional body to use the Human Rights chill as a purgative to cleanse its own ranks. By the end of September, a cozy relationship between the College of Physicians and Surgeons of Ontario (CPSO) and the province’s HRC could culminate in the ratification of a College policy requiring physicians to refer for treatments they find immoral. Failure to do so could result in a Human Rights complaint and disciplinary action by the College.

Preliminary overtures
The story appears to begin on Valentine’s Day 2008, when the OHRC sent the CPSO a note detailing its opinion on certain College policies regulating physician-patient relationships. The clumsily written, unproofread submission betrays a stunning ignorance of the practicalities of medicine. Among the specialties that would be banned if the HRC ran things is sports medicine. Sport doctors, it seems, discriminate unjustly by concentrating on young, healthy patients. Nor is it acceptable to consider how full a practice is when deciding whether to assume the care of a patient with time-consuming health concerns. I shall ignore my suspicion that this tidbit was left as bait for satirists: ’The Commission's recommendation to the College is that "scope" and "balance" be wholly removed from the policy.’ Couldn’t have put it better myself.

The proper reaction to such an officious, ill-reasoned letter from a body with no direct authority is to publish an indignant rebuttal and then ignore the offending party. The CPSO’s response, however, was to lift whole sentences from the submission for placement in a revamped policy, ‘Physicians and the Ontario Human Rights Code’, which was published for review during the holiday months, unheralded in any of the announcement pages usually checked by members for new developments at the College.

The policy’s section on moral or religious beliefs contains two parts, the first a speculation on what the newly invigorated Human Rights Tribunal, the Commission’s quasi-court, might consider to contravene the Ontario Human Rights Code. The authors humbly acknowledge the murkiness of the legal record and the College’s lack of expertise in these matters, even going so far as to recommend that doctors seek legal advice when in doubt. In the section entitled ‘Professional Misconduct’ however, the draft abandons its previous caution and tells doctors in no uncertain terms that if they will not ‘set aside their personal beliefs,’ and make arrangements for whatever a patient requests, they may face a College disciplinary hearing, irrespective of whether the Tribunal finds them in violation of the Code. In plain English: “If the HRT doesn’t get you, we will.”

Discrimination and sophistry
One might be forgiven for wondering why this policy is written as a response to the Human Rights Code at all. The Code mandates equal provision of services, which it does not define, without discrimination based on any of several prohibited grounds ranging from race to sex. (The latter designation includes ‘gender identity’, so as to cover those uncomfortable in their ‘birth-assigned sex,’ such as transvestites and transsexuals. Sexual orientation gets its own mention.) The authors do not appear to have wasted any consideration on the fact that most doctors refusing treatments for religious reasons do not discriminate on any ground, since they do not perform them on anyone. That may be because this problem has already been solved by the HRC in their submission. For example, refusal to provide abortion or contraception is discrimination, because only women can become pregnant. It appears that since the HRC cannot call God to account for His rampantly discriminatory behaviour in creating the human race, doctors will have to take the fall for Him. (Incidentally, The HRC doesn’t actually believe the thing about women. They believe that some men are trapped in female bodies, and therefore presumably capable of pregnancy.)

The draft does offer one frighteningly trenchant example: a doctor who will not assist reproduction for homosexual couples. This really is discrimination on a prohibited ground, and it is exactly the sort of thing ‘Human Rights’ quasi-courts feast on, as Scott Brockie will tell you. In 2000, the OHRC forced him to pay $5,000 to the Canadian Lesbian and Gay Archives for refusing to print their letterhead. In typical HR fashion, this ruling went with a cripplingly expensive show trial. In 2004, despite a partial victory on appeal, he was slapped with the $40,000 legal tab. A British Columbia branch of the Knights of Columbus suffered similar persecution when they refused the use of their hall to a homosexual couple for a ‘wedding’ reception. The province’s Human Rights Tribunal fined the Knights just under $2500, and ordered that they refrain from similar contraventions in future. We need only look to California for a prediction of how much privilege the doctor-patient relationship will enjoy: not much, the Supreme Court of that state having ruled that doctors may not for religious reasons refuse fertility treatments to homosexual couples.

Slick marketing
To argue that such trampling of religious rights is consonant with both common sense and legal precedent, the draft lays out a number of lapidary and apparently indisputable principles of rights law, supporting each with a case citation. Those most likely to be recognized by a religious reader are:

• Regina v. Big M Drug Mart, in which the Supreme Court of Canada struck down the prohibition of work on Sunday.
  
• EGALE Canada Inc. v. Canada, in which the British Columbia Court of Appeal invented homosexual marriage in the province.
  
• Trinity Western University v. British Columbia College of
  Teachers, the high profile joust between a Christian university and the homosexual lobby.

A superficial glance gives the impression of a judiciary willing to curtail religious freedoms when they are inconvenient to non-religious citizens. A closer examination, however, reveals that all three cases, far from supporting the gist of the draft policy, come close to open war against it.

Principle 1: ‘There is no hierarchy of rights in the Charter; freedom of religion and conscience, and equality rights are of equal importance.’
Citation: EGALE Canada Inc. v. Canada.

Never mind that the document seeks to create just such a hierarchy, with religious rights near the bottom. No, the interesting point here is what’s missing from the citation. Two sentences after the statement paraphrased above, we find: 
In [Lemelin J.’s] view, shared by the court in Halpern, the        equality rights of same-sex couples do not displace the rights of religious groups to refuse to solemnize same-sex marriages which do not accord with their religious beliefs.
The authors could not have missed that sentence if they had been reading in the dark, and yet it does not make it into the draft. Why? Because it vindicates physicians’ rights of conscience. (Unless the CPSO would suggest that priests have more rights than doctors. This seems unlikely.)

Principle 2: ‘Freedom to exercise genuine religious belief does not include the right to interfere with the rights of others’.
Citation: Trinity Western University v. British Columbia College of Teachers

The citation is puzzling. Although one lonely sentence of the ruling does express such a sentiment, the chief fact is that eight of nine Supreme Court justices found in favour of the Christian school’s right to require that students abstain from homosexual acts. As they pointed out, there was nothing about the university’s policy that would prevent a homosexual from getting a teaching certificate somewhere else. In the medical context, the refusal to assist reproduction for a homosexual couple does not infringe on their ‘rights’, since they are free to find a willing doctor.
Principle 3: ‘The right to freedom of religion is not unlimited; it is subject to such limitations as are necessary to protect public safety, order, health, morals or the fundamental rights or freedoms of others.’ Citation: R. v. Big M Drug Mart

Something like this statement is indeed found in one sentence of the ruling, suggesting to those who read only that sentence that the prohibition of Sunday work was struck down as an excessive enjoyment of the freedom of religion at the expense of non-Christians. For those who read the whole ruling is reserved the surprise that the prohibition was in fact struck down as an infringement on freedom of religion. Far from curtailing freedom of religion, the ruling gave it previously unimagined scope.

Are some doctors more equal than others?
If the authors foresee any consequences for non-religious doctors, they do not mention them. Would they be forced to refer for sex selection or elective third trimester abortions, perfectly legal procedures in Canada, but which almost no doctor is willing to perform? Or will their opposition be allowed, since it is not based on religious conviction? It would be very strange to rank freedom of religion, which is guaranteed in the Canadian Charter of Rights and Freedoms, below personal dislike, which is not. But maybe it is not far off the mark. The draft itself makes more allowance for particular competence than religious belief; it is only when a doctor refuses a treatment for conscientious reasons that he must make a referral. When he simply lacks expertise, the patient must make his own arrangements. This fact alone is enough to suggest that the goal is not so much to ensure availability for controversial treatments as to silence the opposition.

Quo vadimus?
The latest chapter of the romance came out on August 15th, in the form of the OHRC’s response to the draft policy. The Commission thanked the College for its efforts, but wished to set the record straight on a few points of perception. They resent the College’s suggestion that the legal record is ‘unclear,’ and ask that it be described as complicated instead. They worry about the use of the italicized word ‘may’ before the words ‘be acting contrary to the code.’ Since the College obviously is not getting this right, they offer a better formulation: ’…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, is prima facie discrimination, even if the refusal is based on the physician’s moral or religious belief.’ The long submission’s tenor is best summed up in the Commission’s own words: [sic]‘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.’ We await the College’s final decision.

Religious Canadians ought to learn two things from this discussion. First, our courts are not, as so many of us seem to think, a single-minded set of institutions bent only on driving the mad stagecoach of licentious individualism toward the cliff of civilizational suicide. Even when handing down such absurdities of raw judicial power as EGALE Canada Inc. v. Canada, they often make allowances for those who wish to stand in the way and shout “Stop!”

The second lesson is that the most aggressive elements of this country’s ‘Human Rights’ apparatus are not inclined to make any such exceptions. They reverse the role of the shotgun escort; instead of repelling boarders, he levels his weapon at social conservatives and mutters: “Get in, sit down, and shut up.” If we are entering an age in which professional bodies use the spectre of the ‘Human Rights’ kangaroo courts to punish their own colleagues for dissent from the party line, then the time has come for us all to tremble at the gathering rumble of the stage’s approach.

Benjamin Turner is a member of the Medical Class of 2011, Schulich School of Medicine and Dentistry, University of Western Ontario.