Fundamental Confusion: courts keep inventing new rights

If I told you that I wanted to rob a home or store, would you sell me a gun? Presumably not.  But what about giving me the name and contact info of another person who is willing to sell me a gun?  If you wanted to avoid any participation in my planned robbery, you would refuse to provide a referral.

When it comes female genital mutilation (the ritual cutting and removal of some (or all) of a young girl’s clitoris and labia) the College of Physicians and Surgeons of Ontario (CPSO) recognizes that referring is as bad as providing.  The CPSO prohibits this practice, common in many African and Middle Eastern countries.  Female genital mutilation causes infection, disease and death in many girls, and life-long health problems for millions of women.

The CPSO policy prohibits physicians from performing, and from referring for, female genital mutilation procedures.  Both performing and referring constitute professional misconduct.  The reasoning is obvious.  If cutting off a girl’s clitoris is wrong, then it’s also wrong to provide a referral for this barbaric medical procedure.

Sadly, the CPSO abandoned this obvious common-sense approach in the case of Christian Medical and Dental Society v. CPSO.  This court case was about a challenge to the CPSO policy requiring all doctors in Ontario to provide referrals for abortion, assisted suicide, and other medical procedures which some doctors view as harmful to patients and morally wrong.  In court the CPSO argued that “a referral is neither an endorsement of the service for which the referral is provided, nor a guarantee that it will be provided.”  The CPSO argued that providing a referral is trivial and insignificant, so a doctor would not be violating her conscience when referring a patient for a procedure that the doctor considers harmful.  If the CPSO’s courtroom arguments are true, then why prohibit referring for female genital mutilation?

The Ontario Superior Court of Justice ruled that the CPSO policy violates the Charter freedom of religion and conscience, but then justified this violation as necessary to ensure “equitable” access to health care services.

Abortion and assisted suicide are both legal medical procedures.  Plenty of doctors are available to provide the one, the other, or both.  Having to ask two, three or more doctors for a particular medical service is inconvenient for patients, to be sure.

But does the Charter provide citizens with a legal right to be free from inconvenience?  Beyond a bald declaration, the court provides no explanation as to how or why being inconvenienced is a violation of the Charter.  Nor does the court explain why it is necessary to force every single doctor in Ontario to provide referrals for abortion and assisted suicide.  In other words, even if many doctors refuse to provide referrals for these services, the public would still have ready access to both.
The purpose of the Charter is to protect citizens from government.  For example, the Charter should protect health care workers (and everyone else) from being pressured or coerced by a government body to do what one believes to be wrong.

Conversely, there is no Charter right to force another human being to provide a service that runs contrary to their conscience.  Interactions between citizens should be free from coercion.  A patient’s power to compel a doctor to do what the doctor believes to be harmful is as destructive as a doctor’s power to compel a patient to do what the patient believes to be harmful.

The doctors who challenged the CPSO policy were not merely asking the court to be spared an inconvenience.  Rather, an Ontario doctor who refuses to violate her conscience risks expulsion from the medical profession.

In upholding the CPSO policy, the court confuses fundamental Charter freedoms with personal interests and desires.  The court has dismissed the Charter’s protection from government coercion as less important than a newly invented “right” to compel our fellow citizens (in this case doctors) to do what we want them to do.

Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (www.jccf.ca), which intervened in Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario.

https://www.pressreader.com/canada/national-post-latest-edition/20180228/281913068605797

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