There is a strong, legal argument that the attestation in its current form violates the Charter protections for freedom of conscience and religion, and perhaps also freedom of expression. A government is free to believe and enforce that access to abortion is a human right. If it is also legally bound to protect conscience rights, a government cannot, given the inescapable moral controversy surrounding abortion and the Charter rights of Canadians who profess a different moral view, compel that belief through the attestation. The practical effect is to make access to a taxpayer-funded federal program conditional on agreement with the government’s own views on contestable question of conscience. The policy of the federal government regarding the Canada Summer Jobs program amounts to weaponizing the Charter, using it to exclude nonconforming citizens. The federal government, in this case, has forgotten that the Charter is meant to be a shield for citizens against the abuse of state power. The Canada Summer Jobs controversy is also troubling because it requires citizens who do not wish to take a position on issues such as abortion to do so in order to receive this public benefit. A landscaper that hires extra hands in the summer may have no interest whatsoever in taking a public stand on abortion, but the current policy forces him to do so. As an alternative to the attestation, the federal government could have required applicants to affirm that any funds they receive from the program would be used for lawful purposes. There is nothing objectionable with requiring such an affirmation, and it is unlikely that it would have posed any difficulty for applicants.
The notion that people who disagree with the state on issues such as abortion must either adopt the state’s view or be excluded is acceptable in totalitarian regimes. It is not acceptable in Canada—a country that strives, in the words of the Charter, to be a “free and democratic society.” Using the Charter to legitimize this tactic is disturbing given that Morgentaler, the Supreme Court of Canada’s key decision on abortion, suggested that the state can restrict abortion in certain circumstances. The state’s interest in restricting abortion becomes more compelling the closer the unborn child is to birth. There has been a deliberate distortion of what Morgentaler stands for as a matter of law since its release in 1988. The ruling does not constitutionally guarantee unrestricted access to abortion in Canada. The court’s decision on abortion, “profound as it was, did not create a right to abortion for Canadian women, nor did it offer any resolution of the abortion issue.”52
In Ontario, doctors may refuse to perform procedures or prescribe drugs they deem immoral. However, the public body that regulates these doctors—the College of Physicians and Surgeons of Ontario (CPSO)—has stipulated that they must provide an “effective referral” after such a refusal. An effective referral means that the objecting doctor must find a doctor who does not object to the procedure or drug and subsequently lead the patient to that doctor.
Referrals are morally problematic for some doctors. Imagine if physician-assisted death were still a crime today (as it was until 2016). A doctor would commit the crime not only by directly assisting a suicide but also by indirect involvement—by providing an effective referral, for example. For many physicians, when it comes to procedures such as abortion and assisted death, a referral is the same as saying “I don’t kill people myself but let me tell you about the guy down the street who does.”53 In other words, a referral is similar to driving the robber to the bank—a degree of complicity that makes the driver no less a bank robber than the person who forces the teller to empty the safe at gunpoint.
A group of individual doctors and interested organizations have launched a lawsuit against the CPSO in which they allege that this policy violates freedom of conscience and religion in the Charter. In January 2018, an Ontario court upheld effective referrals. The court found that obligatory effective referrals violate the Charter, but deemed the violation justified because referrals facilitate “equitable access” to health care. The case seems destined for the Supreme Court of Canada.
The CPSO referral policy for doctors in Ontario unjustifiably violates their freedom of conscience. Health care is not a freestanding Charter right. As for the notion of a right to procedures such as abortion and assisted death, there is an important—and often overlooked—difference between saying that the Charter precludes the state from criminalizing these procedures in certain circumstances and saying that the Charter obliges the state to deliver these procedures, on demand, through a public health-care system. Canadian courts have said the former, not the latter. There is, in short, only one Charter right at issue: the freedom of conscience of health-care workers.
Yet procedures such as assisted death and abortion are lawful, and the state has chosen to deliver them as health care. The Supreme Court predicted the need to reconcile access and conscience when it opened the door to assisted death in 2015. Certain provinces have taken steps that better reconcile these interests than requiring referrals. Alberta, for example, created a public health office that handles assisted death. In any event, refusals to refer may not even impair access to lawful health-care services. The Ontario court, in its ruling on effective referrals, noted that there is no evidence to demonstrate that conscientious refusals to refer affect access to health care.54 This finding of the court demands an answer as to why referrals are a justifiable breach of freedom of conscience. The Ontario court neither asked nor answered this question.
While some might say that the essence of a doctor’s job is to provide health care as the state defines it, the substance of health care—the body, life, and death—counsels ample room for moral reflection. There may be no sector of society that is more imbued with moral considerations than health care. The idea of doctors and other health-care workers that are uncritically bureaucratic rather than morally sensitive is unsettling. Banishing conscientious objectors also ignores the link between human dignity and pursuing one’s chosen profession. This link seems especially strong in a field such as health care. The medical profession existed long before the state involved itself in it. Most people do not consider health care to be just another job. They consider it a vocation that includes a host of moral and ethical considerations encountered each day in practice.
Barriers to lawful health-care services—whether created by geography, funding, competence, or conscience—can cause significant distress for patients. Ian Shearer, who was refused assisted death at a Catholic hospital and suffered on account of the delays associated with his transfer to a hospital that would perform the procedure, is an example.55 Another is Jessica Leeder, a woman who encountered several regulatory hurdles before she obtained an abortion.56 These experiences are painful; they must not be trivialized. However, restricting freedom of conscience in the form of requiring referrals is not the appropriate or just solution. This approach downloads the responsibility for preventing these experiences to health-care workers to a degree that is disproportionate to the limit on their freedom of conscience for several reasons—here we highlight three.
First, as already mentioned, there is no Charter right to health care or to specific health-care procedures, but health-care workers are granted freedom of conscience under the Charter. Second, referrals involve a high degree of complicity with the procedure or medication that the health-care worker considers immoral. Even fervent critics of conscientious objection in health care acknowledge the moral dilemma posed by referrals.57 This dilemma leaves the health-care worker with a cruel choice: violate her conscience (and likely suffer some sort of distress) or leave a cherished profession that she may consider a calling. Forcing this choice is oppressive when one considers that, among the numerous procedures and drugs that are delivered in health care, this worker may conscientiously object to only a very small percentage. Third, there are alternatives to referrals that are feasible, affordable, effective, and that reconcile the interests of patients and health-care workers.
Among these alternatives, the CPSO could have created a public office that manages certain procedures, such as the office in Alberta for assisted death.A related option is to require objecting doctors to inform patients of the office rather than require direct referrals. Quebec adopted this approach for assisted death. Another option is to create an online database that indicates which physicians are willing to perform those procedures to which others object for reason of conscience. The CPSO website already has a searchable database of physicians with customizable search criteria such as the physician’s gender and language.58 It would not be difficult to add search criteria for the relatively few procedures and drugs that are widely recognized to provoke conscientious objections. All of these options inflict less harm on the freedom of conscience of health-care workers than obligatory referrals. They are, by all accounts, inexpensive and effective. There is no evidence that these measures impair access to procedures or that they are inferior in this regard when compared to referrals.
Gender Identity and Expression
In 2017, the Parliament of Canada enacted Bill C-16, which amended the Canadian Human Rights Act to include “gender identity or expression” as a prohibited form of discrimination under that statute and amended the Criminal Code to (1) criminalize the promotion of hatred or genocide in relation to persons distinguished by gender identity or expression and (2) require judges, when crafting a sentence for a crime, to consider whether bias, prejudice, or hate based on gender identity or expression motivated the offender. Bill C-16 generated heated debate over concerns that it will suppress—and even penalize—certain forms of speech and even views on transgender issues.
At first blush, these concerns are misplaced. Aside from the federal Canadian Human Rights Act, each province and territory has human rights legislation. The purpose of this legislation— often called a human rights code—is to ban certain kinds of discrimination in contexts such as employment, housing, and services available to the public. At this time, all human rights codes in Canada ban discrimination in these contexts on the basis of gender identity or expression (along with other bases such as religion, sex, and sexual orientation). If a transgender person applies for a job or books a room at a hotel, that person cannot be denied the job or the room because of his or her gender identity or expression. If an employee asks for an on-the-job accommodation connected to their gender identity or expression, the employer must grant it unless it would entail undue hardship. The changes to the Criminal Code acknowledge the evil of harming someone out of hatred toward their gender identity or expression—in the same way that the Criminal Code acknowledges the evil of harming someone because of their religion, sex, or sexual orientation.
Targeting a person because of their gender identity or expression is reprehensible, and no person should be subjected to unjustified discrimination on these grounds. An example of justified discrimination is where employment is denied due to a job requirement. A person with impaired vision who is denied a job as a pilot is discriminated against because of a disability, but we accept—given the nature of the job and interests such as public safety—that the discrimination is justified.
The significance of gender provisions in human rights codes for freedom of conscience is how these provisions will be interpreted by courts and human rights tribunals, particularly with respect to the nature of (and relationship between) sex and gender. It is one thing to acknowledge a conflict between a person’s biological sex and the gender with which they identify—that a person born with male genitalia can identify as a woman, and vice versa. It is an entirely different thing to conclude, for example, that a trans woman is no different from a non-trans woman—that “trans women are women.” To force persons to adopt one of these views, in violation of their moral convictions on the nature of sex and gender, may violate their freedom of conscience.