



COURT OF APPEAL FOR ONTARIO

CITATION: Christian Medical and Dental Society of Canada v.
    College of Physicians and Surgeons of Ontario, 2019 ONCA 393

DATE: 20190515

DOCKET: C65397

Strathy C.J.O., Pepall and Fairburn JJ.A.

BETWEEN

The Christian Medical and Dental Society of
    Canada, The Canadian Federation of Catholic Physicians Societies, Canadian Physicians
    for Life, Dr. Michelle Korvemaker, Dr. Betty-Ann Story, Dr. Isabel Nunes, Dr.
    Agnes Tanguay and Dr. Donato Gugliotta

Applicants
(Appellants)

and

College of Physicians and Surgeons of Ontario

Respondent
(Respondent)

and

Attorney General of Ontario, Dying with Dignity
    Canada, Canadian Civil Liberties Association, The Evangelical Fellowship of
    Canada and The Assembly of Catholic Bishops of Ontario and the Christian Legal
    Fellowship, Bnai Brith of Canada League for Human Rights, Justice Centre for
    Constitutional Freedoms, Catholic Civil Rights League, Faith and Freedom
    Alliance and Protection of Conscience Project, Canadian HIV/AIDS Legal Network,
    HIV & AIDS Legal Clinic Ontario and Canadian Professional Association for
    Transgender Health

Interveners

Eugene Meehan, Q.C., for the
    appellants the Christian Medical and Dental Society of Canada, the Canadian
    Federation of Catholic Physicians Societies, Dr. Michelle Korvemaker, Dr.
    Betty-Ann Story, Dr. Isabel Nunes, Dr. Agnes Tanguay and Dr. Donato Gugliotta

Albertos Polizogopoulos, for
    the appellant Canadian Physicians for Life

Lisa Brownstone and Ruth
    Ainsworth, for the respondent

Shaun OBrien and Karen
    Segal, for the intervener Womens Legal Education and Action Fund Inc.

Rahool Agarwal and Kate
    Findlay, for the intervener Canadian Civil Liberties Association

Kelly Doctor and
    Mary-Elizabeth Dill, for the intervener Dying with Dignity Canada

Emrys Davis and Grace McKeown,
    for the interveners Catholic Civil Rights League, Faith and Freedom Alliance
    and Protection of Conscience Project

Timothy D. Chapman-Smith and
    Shanique M. Lake, for the intervener Ontario Medical Association

Michael Fenrick and Khalid
    Janmohamed, for the interveners Canadian HIV/AIDS Legal Network, HIV & AIDS
    Legal Clinic Ontario and Canadian Professional Association for Transgender
    Health

Alan Honner, for the intervener
    Justice Centre for Constitutional Freedoms

Deina Warren, Derek B.M. Ross
    and Sarah E. Mix-Ross, for the interveners The Evangelical Fellowship of
    Canada, The Assembly of Catholic Bishops of Ontario and the Christian Legal
    Fellowship

Gregory M. Sidlofsky, for the
    intervener Bnai Brith of Canada League for Human Rights, the Vaad Harabonim of
    Toronto and the Centre for Israel and Jewish Affairs

Heard: January 21 and 22, 2019

On appeal from the order of the Divisional Court (Justices
    Herman J. Wilton-Siegel, Richard A. Lococo and Wendy M. Matheson), dated January
    31, 2018, with reasons reported at 2018 ONSC 579, 140 O.R. (3d) 742.

Strathy C.J.O.:


A.

Overview

[1]

This appeal requires the court to reconcile a conflict between patients
    access to medical services such as medical assistance in dying (MAiD),
    abortion and reproductive health services and physicians freedom to refuse to participate
    in services to which they have religious objections.

[2]

The appellants challenge the constitutionality of two policies (the
    Policies) enacted by the College of Physicians and Surgeons of Ontario (the
    College). The Policies each require physicians who object to providing
    certain medical procedures or pharmaceuticals on the basis of religion or
    conscience to provide the patient with an effective referral. An effective
    referral is defined as a referral made in good faith, to a non-objecting,
    available, and accessible physician, other health-care professional, or
    agency.
[1]
The Policies do not require physicians to personally provide the services to
    which they object, except in an emergency where it is necessary to prevent
    imminent harm to a patient.

[3]

The constitutionality of the Policies effective referral requirements is
    the focus of this appeal.

[4]

The appellants are individual physicians and organizations representing
    physicians in Ontario. They brought two separate applications in the Divisional
    Court, challenging the Policies on the ground that the effective referral
    requirements infringe their freedom of conscience and religion under s. 2(a) of
    the
Canadian Charter of Rights and Freedoms
because the requirements oblige
    them to be complicit in procedures that offend their religious beliefs. The
    appellants also claimed that the effective referral requirements discriminate
    against physicians based on their religions, thus infringing their s. 15(1)
    equality rights.

[5]

The Divisional Court dismissed the appellants applications. It found
    that while the Policies infringe their freedom of religion, the infringement is
    justified under s. 1 of the
Charter
, because the Policies are reasonable
    limits, demonstrably justified in a free and democratic society. The Divisional
    Court did not consider whether freedom of conscience is engaged. It dismissed the
    s. 15(1) claim in its entirety.

[6]

The appellants and the College each take issue with the Divisional
    Courts findings regarding the cost or burden imposed by the Policies on
    objecting physicians, and the corresponding balancing in the
R. v. Oakes
,
    [1986] 1 S.C.R. 103 analysis of that cost or burden against the salutary
    effects of the Policies. They each sought to adduce fresh evidence on this
    issue. The College denies there is a breach of s. 2(a), but says that if there
    is, it is justified under s. 1.

[7]

The appeal focuses on the s. 1 analysis and turns primarily on the minimal
    impairment and proportionality branches of the analytical framework outlined in
Oakes
. This requires an appropriate characterization of the nature of
    the cost or burden imposed by the Policies on objecting physicians, and the
    balancing of that burden against the benefits of the objective of the effective
    referral requirements. The appellants principal submission on appeal is that
    the effective referral requirements are not minimally impairing of their rights
    and that alternative measures would achieve the same objective, while
    respecting their freedom of religion. They contend that a generalized
    information model, in which objecting physicians give patients information
    concerning publicly-available resources and services, would provide a
    practical, workable and less impairing alternative to effective referral. The
    College denies there is a breach of s. 2(a), but says that if there is, the
    Policies are justified under s. 1.

[8]

For the reasons that follow, I substantially agree with the thorough and
    cogent analysis of the Divisional Court and would dismiss the appeal.

B.

Background

(1)

The Parties and Interveners

[9]

The five individual appellants are family physicians, practicing in
    various parts of Ontario. As I will explain, their religion is central to their
    lives. It informs everything they do, including their practice of medicine.
    They care deeply for their patients and strive to honour their legal and
    ethical duties to their patients. They also believe in the sanctity of human
    life. Their evidence, supported by the evidence of other physicians and
    theologians, is that the effective referral requirements of the Policies
    contravene their conscientious and religious beliefs, which prevent them from
    performing some or all of the medical procedures at issue. The scope of their
    beliefs extends beyond performing such procedures, and includes being complicit
    in or an accessory to those procedures. They believe that complying with the effective
    referral requirements of the Policies would make them complicit in performing
    those procedures.

[10]

The
    three appellant organizations represent physicians who object to some or all of
    abortion, MAiD and other medical procedures and pharmaceuticals on grounds of
    religion and conscience. These organizations are:

·

The Christian Medical and Dental Society of Canada (the CMDSC),
    a national association of Christian physicians and dentists with approximately
    500 members in Ontario. The five individual appellants are members of the CMDSC;

·

The Canadian Federation of Catholic Physicians Societies, a
    national association of Catholic Physicians guilds, associations, and
    societies in eleven Canadian cities, including four in Ontario; and

·

Canadian Physicians for Life, a non-religious national
    association of pro-life physicians, retired physicians, medical residents and
    students, with approximately 1,000 members in Ontario.

[11]

The
    College is the self-governing body for the medical profession in Ontario under
    the
Regulated Health Professions Act, 1991
, S.O. 1991, c. 18 (
RHPA
)
    and the
Medicine Act, 1991
, S.O. 1991, c. 30.

[12]

Nine
    organizations or groups of organizations, some of which intervened in the
    Divisional Court, were granted leave to intervene in this appeal. Five intervening
    organizations and groups supported the position of the appellants: (1) the
    Catholic Civil Rights League, Faith and Freedom Alliance, and Protection of
    Conscience Project (the CCRL et al.); (2) The Evangelical Fellowship of Canada,
    The Assembly of Catholic Bishops of Ontario, and Christian Legal Fellowship
    (the EFC et al.); (3) the Ontario Medical Association (the OMA) (which did
    not intervene in the applications below); (4) Bnai Brith of Canada League for
    Human Rights, the Vaad Harabonim of Toronto, and the Centre for Israel and
    Jewish Affairs (Bnai Brith et al.); and (5) the Justice Centre for
    Constitutional Freedoms (the JCCF).

[13]

Four
    intervening organizations and groups supported the position of the College: (1)
    the Canadian Civil Liberties Association (the CCLA); (2) Womens Legal
    Education and Action Fund Inc. (LEAF) (which did not intervene in the
    applications below); (3) Dying with Dignity Canada; and (4) the Canadian
    HIV/AIDS Legal Network, HIV & AIDS Legal Clinic Ontario, and the Canadian
    Professional Association for Transgender Health (the Canadian HIV/AIDS Legal
    Network et al.).

(2)

The Policies

[14]

The
    Policies, extracts of which are set out below, require a physician to give an
    effective referral to another health care provider for medical procedures or
    pharmaceuticals which the physician objects to providing on the basis of religion
    or conscience. While each of the individual appellants objects to MAiD and abortion,
    their objections are not uniform with regard to other procedures and
    pharmaceuticals, such as contraception, emergency contraception, fertility
    treatments, and medical treatments for transgender patients.

[15]

None
    of the parties dispute that the
Charter
applies to the Policies. The
    College says the
Charter
applies, not because it is a state actor and
    not because the Policies are laws, but rather because it is implementing a
    specific government objective through the Policies:
Eldridge v. British
    Columbia (Attorney General)
, [1997] 3 S.C.R. 624, at paras. 44, 50-51.

[16]

The
    Policies are not regulations, nor are they a code, standard or guideline
    relating to standards of practice of the profession adopted pursuant to s.
    95(1.1) of the Health Professions Procedural Code, Schedule 2 of the
RHPA
.
    Accordingly, non-compliance with the Policies is not an act of professional
    misconduct under the Colleges professional misconduct regulation:
Professional
    Misconduct
, O. Reg. 856/93.

[17]

However,
    the Policies establish expectations of physicians behaviour and are intended
    to have normative force. As such, they may be used as evidence of professional
    standards in support of an allegation of professional misconduct.

[18]

The
    College introduced the Policies in 2015 and 2016. The first was Policy
    Statement #2-15, entitled Professional Obligations and Human Rights (the
    Human Rights Policy), which contains the following effective referral
    requirement:

Where physicians are unwilling to provide certain elements of
    care for reasons of conscience or religion, an effective referral to another
    health-care provider must be provided to the patient.
An
    effective referral means a referral made in good faith, to a non-objecting,
    available, and accessible physician, other health-care professional, or agency
.
    The referral must be made in a timely manner to allow patients to access care.
    Patients must not be exposed to adverse clinical outcomes due to a delayed
    referral. Physicians must not impede access to care for existing patients, or
    those seeking to become patients. [Emphasis added.]
[2]

[19]

The
    Human Rights Policy was the evolution of Policy Statement #5-08, entitled
    Physicians and the Ontario
Human Rights Code
, adopted by the College
    in 2008 to address its expectations for physicians who, for moral or religious
    reasons, refused to accept certain patients, refused to provide medical
    services, or terminated the physician-patient relationship. While that document
    did not contain the current effective referral requirement, it did provide that
    objecting physicians were expected to [a]dvise patients or individuals who
    wish to become patients that they can see another physician with whom they can
    discuss their situation and in some circumstances, help the patient or
    individual make arrangements to do so.

[20]

In
    2014, the College undertook a review of the policy and engaged in a
    consultation process with its membership and other interested parties, revising
    the policy in March 2015 to include the effective referral requirement.

[21]

The
    stated purpose of the Human Rights Policy is to set out the legal obligations
    under the [
Human Rights
]
Code
for physicians to provide
    health services without discrimination, as well as the Colleges professional
    and ethical expectations of physicians in meeting those obligations. [The]
    policy outlines physicians rights to limit the health services they provide
    for legitimate reasons while upholding their fiduciary duty to their patients.

[22]

After
    the release of the decision of the Supreme Court of Canada in
Carter v.
    Canada (Attorney General)
, 2015 SCC 5, [2015] 1 S.C.R. 331, striking down
    portions of the
Criminal Code
, R.S.C. 1985, c. C-46, prohibiting
    assisted suicide, the College undertook a consultation process, which led to
    the adoption of a policy to provide guidance to physicians in complying with
    the legislation permitting MAiD. The stated purpose of the policy, adopted in
    June 2016, is to articulate the legal obligations and professional
    expectations for physicians with respect to medical assistance in dying, as set
    out in federal legislation, provincial legislation, and relevant College
    policies.

[23]

This
    was Policy Statement #4-16, entitled Medical Assistance in Dying (the MAiD
    Policy), which contained the following effective referral requirement:

Where a physician declines to provide medical assistance in
    dying for reasons of conscience or religion, the physician must not abandon the
    patient. An effective referral must be provided.
An
    effective referral means a referral made in good faith, to a non-objecting,
    available, and accessible physician, nurse practitioner or agency
. The
    referral must be made in a timely manner to allow the patient to access medical
    assistance in dying. Patients must not be exposed to adverse clinical outcomes
    due to delayed referrals. [Emphasis added.]

[24]

A
    Fact Sheet released by the College in 2016 gave guidance to physicians on
    compliance with the effective referral requirements. It states that a physician
    makes an effective referral when he or she takes positive action to ensure the
    patient is connected in a timely manner to another physician, health care
    provider, or agency who is non-objecting, accessible and available to the
    patient.

[25]

The
    Fact Sheet provides a non-exhaustive list of examples of how physicians can comply
    with the effective referral requirements. It notes that the physician can make
    the referral or assign the task to another, a designate, to make the referral
    to a non-objecting physician, other non-objecting health care professional or an
    agency charged with facilitating referrals for the health care service. It also
    provides suggestions for physicians practicing in a hospital, clinic, or family
    practice group. The Divisional Court observed, at para. 33, that these include
    identification of a point person within the institution or practice group who
    will facilitate referrals, or provide the health care to the patient, and
    implementation of a triage system for matching patients directly with
    non-objecting physicians in the institution or practice group.

[26]

Contrary
    to the submissions on behalf of the OMA, an effective referral is not the same
    as a formal referral as generally understood within the medical profession. The
    Divisional Court made this point in describing the scope of the effective
    referral requirements, at para. 31:

First, the Policies do not require that a referring physician
    provide a formal letter of referral to, and arrange an appointment for a
    patient with, another physician. The CPSO says that the intent of the Policies
    is to ensure only that patients are not left to finding a willing physician on
    their own without any assistance from the physician from whom they first sought
    care.
Accordingly, the spirit of the requirements is that
    the physician take positive action to connect a patient with a physician,
    another health-care professional or an agency
. Second, referral may be
    made to any of a physician, another health-care professional or an agency
    provided the party to whom a patient is referred provides the requested medical
    services and is non-objecting, available and accessible.
In the case of an agency, a referral may be made to an agency
    that is charged with facilitating referrals for the health care service
.
    [Emphasis added.]

[27]

It
    is noteworthy that in the case of both Policies, the referral can be made to someone
    other than a physician, including another non-objecting health care
    professional (such as a nurse practitioner) or an agency charged with
    facilitating referrals for patients. It is also noteworthy that the referral
    can be made by a staff member who is not a physician. As I have noted, the individual
    appellants and other objecting physicians regard providing an effective
    referral as complicity in the procedure itself and, therefore, sinful. However,
    not all of the individual appellants object to having a staff member provide
    the referral.

(3)

The Fresh Evidence

[28]

The
    appellants and the College each brought an application to submit fresh evidence
    on the appeal and each consented to the admissibility of the fresh evidence of
    the other. I would exercise the courts discretion to admit all the fresh
    evidence on appeal.

[29]

Some
    of the appellants fresh evidence is directed to what they contend was an
    erroneous assumption of the Divisional Court that objecting physicians could
    avoid conflicts between their religious beliefs and their obligations under the
    Policies by changing their practices to other specialties or sub-specialties,
    with little or no burden. They contend that the evidence suggests that the
    process of changing ones practice is, in fact, time-consuming, costly and
    risky. They argue that the Divisional Courts mistaken assumption resulted in a
    flawed s. 1 analysis.

[30]

The
    appellants fresh evidence is also directed to showing that patients can access
    MAiD through Ontarios Care Coordination Service (the CCS) and that the
    publicly-accessible Telehealth service in Ontario can provide access to
    information and referral for MAiD and for other services such as abortion, contraception
    and other reproductive health services.

[31]

In May 2017, Ontario established the CCS to
    assist patients and clinicians in accessing information and support for MAiD
    and other end-of-life options, including palliative care and hospice care.
At
    the time the applications were heard by the Divisional Court, the CCS had just
    been announced. At that time, it was only accessible by physicians. That model
    has since been replaced by a direct access system that does not require a
    physician to make a referral.

[32]

Through the CCS, patients and their caregivers
    can be connected with a physician or nurse practitioner who can conduct an assessment
    of whether a patients condition meets the eligibility requirements for MAiD
    and, if appropriate, can provide MAiD and related services. Physicians or nurse
    practitioners who are unwilling or unable to provide MAiD can also contact the
    CCS to refer their patients to medical personnel who can provide such services.

[33]

Telehealth provides a free, confidential, telephone-accessed
    service, in both French and English, and with translation support for some
    other languages, for health advice and information on a 24 hours per day, 7
    days per week basis. A registered nurse will discuss the callers health issues
    in order to assess the callers health concerns and give advice. The nurse will
    not diagnose the condition or prescribe medication. The nurse will direct the
    caller to the most appropriate level of care and may put the caller in contact
    with a health care professional who can advise the caller concerning treatment.

[34]

The Colleges
    fresh evidence is directed toward two issues. First, to establish that
    physicians may be able to change their scope of practice, to practice in
    areas that do not raise moral and ethical issues, without the need for
    re-certification. Second, to establish through first-hand patient accounts, the
    hardship and risks encountered by patients whose physicians refuse to provide
    an effective referral and the inadequacy and inaccessibility of internet or
    telephone resources to meet the needs of certain patients.

[35]

I
    shall refer to the fresh evidence in more detail when I turn to the s. 1
    analysis.

C.

The Divisional Courts Reasons

[36]

To
    put the issues in context, I will summarize the reasons of the Divisional
    Court. I will refer to those reasons in more detail, where necessary, in the
    Analysis section, below.

[37]

The
    Divisional Court considered several preliminary issues before addressing the
    constitutionality of the Policies. First, it rejected the appellants
    submission that the Policies are
ultra vires
the College. This issue
    is not being pursued in this court. Second, it found that the framework
    articulated in
Oakes
applied to the s. 1 analysis, rejecting the Colleges
    submission that the framework articulated in
Doré v. Barreau du Québec
,
    2012 SCC 12, [2012] 1 S.C.R. 395, and
Loyola High School v. Quebec
    (Attorney General)
, 2015 SCC 12, [2015] 1 S.C.R. 613, applied. The core
    issue was the constitutionality of the provisions in policies of general
    application, rather than the decisions to put those policies in place. Third, the
    Divisional Court found that correctness was the applicable standard for the
    review of the constitutionality of the Policies.

[38]

Turning
    to the constitutional issues, the Divisional Court found that the effective
    referral requirements of the Policies infringe the individual appellants s.
    2(a) religious freedom. It rejected the Colleges argument that there is no
    infringement because the burden of compliance with the Policies is trivial or
    insubstantial. The Divisional Court found that while the suggestions listed in
    the Fact Sheet address the concerns of many religious physicians, they do not
    address the concerns of all the individual appellants. Therefore, the
    Divisional Court held that the Policies infringe physicians freedom of
    religion because the effect of the Policies is that at least some individual appellants
    are not free to practice medicine in accordance with their religious beliefs.

[39]

Having
    found an infringement of s. 2(a) on the basis of freedom of religion, the court
    found it unnecessary to consider the appellants alternative submission based
    on freedom of conscience.

[40]

The
    appellants also argued that the Policies infringe their s. 15(1) equality rights
    because they impose a burden on religious physicians that is not imposed on
    other physicians. Applying the two-part test set out in
Kahkewistahaw First
    Nation v. Taypotat
, 2015 SCC 30, [2015] 2 S.C.R. 548, the Divisional Court
    held that even if the effective referral requirements created a distinction
    between religious physicians and all other physicians, the appellants had failed
    to demonstrate that the Policies imposed a burden or denied a benefit in a
    manner that has the effect of reinforcing, perpetuating or exacerbating their
    disadvantage.

[41]

Having
    found an infringement of s. 2(a), the Divisional Court considered whether the
    infringement is justified under s. 1. It found that the effective referral
    requirements of the Policies constitute limits prescribed by law, in
    accordance with the standard set out in
Greater Vancouver Transportation
    Authority v. Canadian Federation of Students  British Columbia Component
,
    2009 SCC 31, [2009] 2 S.C.R. 295, at paras. 64-65, for binding policies of
    general application enacted by regulatory entities.

[42]

Turning
    to the first branch of the
Oakes
analysis, the Divisional Court found
    that the objective of the effective referral requirements of the Policies 
    which it defined as facilitating equitable access for patients to health care
    services  is sufficiently pressing and substantial to warrant overriding the
    individual appellants religious freedom. Applying
Harper v. Canada
    (Attorney General)
, 2004 SCC 33, [2004] 1 S.C.R. 827, the Divisional Court
    found that, while there was no direct evidence that access to health care is a
    problem caused by physicians religious objections to providing care, the
    Policies address a reasoned apprehension of harm, namely deprivation of
    equitable access to health care, particularly for vulnerable populations, in
    the absence of effective referral. The Divisional Court found that the evidence
    in the record established this risk of deprivation.

[43]

The
    Divisional Court found that the effective referral requirements are rationally
    connected to the goal of equitable access to health care services. It accepted
    the Colleges evidence about the important role played by family physicians as
    gatekeepers in the public health care system, particularly in regions where
    patients do not have meaningful choices about their primary health care
    provider. It found, at para. 159, that:

[P]atients may lack the resources, financial or otherwise, or
    may not be healthy enough to access the services they seek without the benefit
    of a physician referral. In many cases, a patient requires his or her physician
    to act as the patients navigator through the health care system and advocate
    on their behalf once the patient has expressed his or her healthcare needs and
    decided upon his or her desired treatment.

[44]

The Divisional
    Court found that some patients, particularly more vulnerable patients, would be
    deprived of equitable access to health care in the absence of the Policies effective
    referral requirements. Thus, there is a rational connection between the
    objective of the requirements and the means of achieving the objective, because
    it is reasonable to conclude that the effective referral requirements will
    facilitate patient access to care, based on physicians gatekeeper function.

[45]

With
    respect to the minimal impairment branch of the
Oakes
analysis, the Divisional
    Court considered the affidavit evidence of a manager in the Colleges policy
    department, which outlined the Colleges consideration of several alternative
    models and the reasons why those models had been rejected. The court found that
    the alternative means proposed by the appellants did not meet the objectives of
    the College in a real and substantial manner. Each proposal relied on a
    self-referral model, which had been rejected by the College, and the
    alternatives were not directed towards the objective of the requirements. The
    Divisional Court found that none of these alternative models represents a less
    drastic means of achieving the objective of the Policies in a real and
    substantial manner and, therefore, that the rights of the Individual Applicants
    are impaired no more than necessary.

[46]

The
    court also rejected the appellants argument that the Policies are not
    minimally impairing because other jurisdictions in Canada do not require
    objecting physicians to make an effective referral. While other provincial
    health care regulators may have developed policies less impairing of freedom of
    religion, the test is whether the provision falls within a range of reasonable
    alternatives. The legislator is entitled to some leeway. Nevertheless, the
    Divisional Court found that regulations in a number of other Canadian
    jurisdictions impose referral requirements similar to those adopted by the
    College. It found that the effective referral requirements satisfy the
Oakes
minimal impairment test because they fall within a range of reasonable
    alternatives to address the conscientious and religious objections of
    physicians.

[47]

In
    the final branch of the
Oakes
analysis, the Divisional Court concluded
    that the impact of the effective referral requirements on objecting physicians
    is proportionate.

[48]

The Divisional
    Court noted three contextual considerations relevant to the balancing. First, s.
    7 of the
Charter
confers a right to equitable access to such medical
    services as are legally available in Ontario and provided under the provincial
    healthcare system. Second, physicians have no right to practice medicine, let
    alone a constitutionally-protected right. Third, physicians in Ontario practice
    in a single-payer, publicly-funded health care system, which is structured
    around patient-centered care. Physicians have a duty not to abandon patients.
    In the event of a conflict, the interests of patients come first.

[49]

The Divisional
    Court found that the salutary effects of the Policies ensured equitable access
    to health care by: preventing a delay in access to medical services; preventing
    loss of eligibility or denial of care for desired services; and preventing the
    stigma or emotional distress associated with a physicians denial of the
    request for medical services.

[50]

While
    compliance with the Policies could have deleterious effects for some
    physicians, they were not without alternatives. For those physicians whose
    religious objections could not be addressed by the options identified in the
    Fact Sheet, the physicians could change the nature of their practice to a
    specialty or sub-specialty that did not engage the same moral and ethical
    issues. Given the options available to comply with the Policies, the potential
    for a conflict between a physicians religious beliefs and the Policies, and
    any resulting psychological concern, results from a conscious choice of the
    physician to practice in circumstances in which such a conflict could arise.
    The deleterious effects of the Policies, while not trivial, are less serious
    than outright exclusion from the practice of medicine.

[51]

In
    balancing the salutary and deleterious effects of the Policies, the Divisional
    Court concluded that it is reasonable to expect on the evidence and logic that
    an effective referral requirement will make a positive difference in ensuring
    access to healthcare, and in particular equitable access to healthcare, in
    circumstances in which a physician objects on religious or conscientious
    grounds to the provision of medical services requested by a patient.
    Particularly for vulnerable individuals, the self-referral model proposed by
    the appellants, would interfere with the ability of such individuals to access
    the health care services they seek.

[52]

In
    balancing the public benefit against the costs in the context outlined above,
    the Divisional Court found that to the extent there remains any conflict
    between patient rights and physician rights that cannot be reconciled within
    the Policies, the former must govern.

D.

The Parties Submissions

[53]

The
    appellants core submission is that the Policies impose an unnecessary and
    therefore unreasonable limit on their religious freedom. They submit that requiring
    a direct, individualized referral is unnecessary, because reasonable
    alternatives can achieve the same result, while respecting their freedom of
    religion. Providing readily-available, generalized health care information and a
    referral to the CCS, Telehealth or other informational resources strikes a
    reasonable balance between religious freedom and equitable patient access to
    health care.

[54]

The
    appellants submit that the Divisional Court erred in its s. 1 analysis,
    because: (1) there is no rational connection between the Policies and the
    objective of promoting equitable access to health care; (2) mandatory,
    individualized referral does not satisfy the minimal impairment branch of the
    proportionality analysis and does not fall within a range of reasonable
    alternatives; and (3) the Divisional Courts balancing of the salutary and
    deleterious effects of the Policies was flawed by its erroneous assumption that
    objecting physicians can insulate themselves from the conflict with their religious
    beliefs by changing their specialty or sub-specialty. The appellants also
    submit that the Divisional Court erred in its s. 15(1) analysis.

[55]

The College
    contends that: (1) the Divisional Court should have applied the reasonableness
    standard of review and the framework articulated in
Doré/Loyola
rather
    than
Oakes
; (2) the Divisional Court erred in finding a s. 2(a) breach,
    because any interference with the appellants freedom of religion is trivial
    and insubstantial in light of the availability of practice management
    alternatives set out in the Fact Sheet; and (3) alternatively, if there is a s.
    2(a) breach, regardless of whether the
Doré/Loyola
or
Oakes
framework
    applies, any potential interference with freedom of religion is justified under
    s. 1. The College also says that the Divisional Court correctly found there was
    no s. 15(1) breach.

[56]

I
    will discuss the submissions of the parties and the interveners further in the
    Analysis section, below.

E.

Issues

[57]

The
    appeal raises the following issues:

(1)

What is the applicable standard
    of review and is the
Doré/Loyola
framework or the
Oakes
framework applicable to this case?

(2)

Do
    the effective referral requirements of the Policies infringe the appellants s.
    2(a) freedom of conscience and religion?

(3)

Do
    the effective referral requirements of the Policies infringe the appellants s.
    15(1) equality rights?

(4)

If there is an infringement
    of the appellants
Charter
rights and/or freedoms, is it justified
    under s. 1 of the
Charter
?

F.

Analysis

(1)

Standard of Review and the Framework for Analysis

[58]

The
    appellants agree with the Divisional Courts conclusion that the standard of
    review to be applied to the Policies was correctness and that
Oakes
provided
    the applicable framework for analysis. The College disagrees on both points, submitting
    that the constitutional review of a policy articulating standards of conduct
    for members of a profession should be conducted under a reasonableness standard
    and the
Doré/Loyola
framework.

[59]

The
    normal rules of appellate review of lower court decisions, articulated in
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, apply on this appeal. Questions
    of law are reviewed on a correctness standard, and questions of fact and mixed
    fact and law are reviewed on a standard of palpable and overriding error:
Housen
,
    at paras. 8, 10, 36-37. The Divisional Courts selection and application of the
    correctness standard to the Policies is a question of law and is accordingly reviewed
    by this court on a correctness standard.

[60]

Ordinarily,
    this court would be called upon to determine whether the Divisional Court chose
    the correct standard of review and applied it properly:
Agraira v. Canada
    (Public Safety and Emergency Preparedness)
, 2013 SCC 36, [2013] 2 S.C.R.
    559, at paras. 45-47;
Dr. Q v. College of Physicians and Surgeons of
    British Columbia
, 2003 SCC 19, [2003] 1 S.C.R. 226, at para. 43; and
College
    of Physicians and Surgeons of Ontario v. Peirovy
, 2018 ONCA 420, 143 O.R.
    (3d) 596, at para. 52. However, the parties agree that the outcome of this appeal
    is unaffected by the choice of standard of review and framework for analysis, because
    the purpose of both frameworks is to determine whether the Policies
    unreasonably limit the appellants
Charter
rights or freedoms:
Doré
,
    at para. 6. Accordingly, I would leave for another day the question of which
    standard of review and framework ought to be applied in these circumstances.
    For the purposes of these reasons, I simply apply the standard and framework
    chosen by the Divisional Court, which formed the basis of the parties submissions
    on appeal. Nevertheless, like the Divisional Court, I would reach the same
    result applying a reasonableness standard and the
Doré/Loyola
framework.

(2)

Section 2(a): Freedom of Conscience and Religion

[61]

Section
    2(a) of the
Charter
provides:

Everyone has the following fundamental freedoms:

(a) freedom of conscience
    and religion

Interference with freedom of religion

[62]

In
Law
    Society of British Columbia v. Trinity Western University
, 2018 SCC 32,
    [2018] 2 S.C.R. 293, at para. 62, the Supreme Court adopted the definition of
    religious freedom expressed in
R. v. Big M Drug Mart Ltd.
, [1985] 1
    S.C.R. 295, at p. 336:

[T]he right to entertain such religious beliefs as a person
    chooses, the right to declare religious beliefs openly and without fear of
    hindrance or reprisal, and the right to manifest religious belief by worship
    and practice or by teaching and dissemination.

[63]

At
    para. 63, the court set out the requirements of the test:

[F]irst, that he or she sincerely believes in a practice or
    belief that has a nexus with religion; and second, that the impugned state
    conduct interferes, in a manner that is more than trivial or insubstantial,
    with his or her ability to act in accordance with that practice or belief.

This was the test applied by the Divisional Court,
    referring to
Syndicat Northcrest v. Amselem
, 2004 SCC 47, [2004] 2
    S.C.R. 551, at para. 56. See also
Alberta v. Hutterian Brethren of Wilson
    Colony
, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 32.

[64]

The sincerity
    of belief and interference are conceded. But the College contends that the
    interference is trivial and insubstantial and does not contravene s. 2(a).

[65]

I
    disagree. To explain my reasons, it is necessary to examine the appellants
    beliefs and their objections to performing or referring patients for the
    procedures at issue.

The role of religion in the appellants
    lives and the impact of their religious beliefs

[66]

While
    the individual appellants objections are not uniform, they all have a sincere
    religious belief that human life is sacred, that abortion and MAiD are sinful,
    and that complicity in either practice, in the manner required by the Policies,
    is equally sinful.

[67]

The
    individual appellants religious faith is central to their identities and their
    religious beliefs are sincerely held. As one, Dr. Michelle Korvemaker, put it,
    [m]y faith is the most important part of my life. It defines who I am, what I
    do and how I do it. I practice medicine first as a Christian.

[68]

The
    individual appellants gave similar evidence concerning the nexus between their
    religious beliefs and their objections to providing medical services that are
    contrary to their beliefs in the sanctity of human life. For them, providing a
    patient with an effective referral to a physician who provides MAiD or an
    abortion would be the same as performing the medical procedures themselves. It
    would make them complicit and would be sinful.

[69]

Some
    of the individual appellants deposed that their religious beliefs would
    preclude them from prescribing or providing some or all contraceptives, which
    they regard as morally wrong, and that referring patients for such methods of
    family planning would also be morally wrong.

[70]

The
    appellants objections that compliance with the Policies would make them
    complicit in moral wrong is supported by the evidence of expert theologians and
    ethicists who deposed that the act of referral is a form of direct cooperation
    in the act which makes the physician complicit. As one, Dr. Daniel Sulmasy, put
    it, for a religious physician, [r]eferral is not just a morally neutral
    get-together.

[71]

As
    noted above, the appellants object to a range of medical procedures and
    pharmaceuticals. The evidence also demonstrates that individual physicians have
    different levels of tolerance for the steps required to connect a patient with
    an alternative provider of the services or pharmaceuticals. In their written
    submissions, the appellants stated that all of the members of the appellant
    organizations would be comfortable providing a patient with the phone number
    for Telehealth. This appears to be a retreat from the evidence in the
    Divisional Court, which suggested that at least some appellants would regard
    this as complicity. In oral argument, counsel for the appellants stated that
    they would also be comfortable with providing patients with the phone number for
    the CCS. This, too, appears to be a retreat from the evidence that some of the
    appellants would not be comfortable with providing the phone number for the CCS
    to patients. The appellants also submit that the wording of the Policies could
    be made 
Charter
compliant through the addition of an option for an
    objecting physician to connect the patient with a resource as an alternative
    to providing an effective referral as currently defined by the Policies.

Is the interference trivial or
    insubstantial?

[72]

The College
    submits that there is no
Charter
infringement because the interference
    with the appellants freedom of religion is no more than trivial or
    insubstantial.

[73]

As I
    have noted, the Divisional Court rejected this submission, finding that having
    regard to the significance of the appellants religious beliefs, the burdens
    and costs of complying with the Policies, viewed objectively, could not be
    characterized as trivial or insubstantial. After a lengthy analysis of this
    issue, and of the means of complying with the Policies, Wilton-Siegel J. concluded,
    at para. 114:

Based on the foregoing, and given the significance of the
    religious beliefs in question to the Individual Applicants, I therefore find
    that the burden or cost to the Individual Applicants associated with compliance
    with the Policies cannot be characterized as trivial or insubstantial. The
    effect of the Policies is that at least some of the Individual Applicants are
    not free to practice medicine in accordance with their religious beliefs or
    their conscience.

[74]

The College
    submits that this was an error. It submits that in delineating the scope of the
    freedom, the Divisional Court conflated the two branches of the s. 2(a) test articulated
    in
Amselem and Multani v. Commission scolaire Marguerite-Bourgeoys
,
    2006 SCC 6, [2006] 1 S.C.R. 256, by failing to consider the context in which
    the freedom is being invoked by the appellants. It points to three contextual
    features that the Divisional Court allegedly failed to consider: (1) the
    Policies do not relate to the conduct of the appellants in their personal
    sphere, but rather as members of a highly-regulated profession operating in a
    multicultural and diverse society; (2) the Policies relate to access to health
    care services in a single-payer system where family physicians act as
    gatekeepers and navigators for patients, care is patient-centered and patient
    autonomy is respected; and (3) the right to practice medicine is a privilege,
    which imposes overriding duties and responsibilities on physicians to put the needs
    of their patients before their own. The College contends that while physicians
    are free to subscribe to their beliefs, the freedom to hold beliefs is broader
    than the freedom to act on them.

[75]

The
    interveners, the Canadian HIV/AIDS Legal Network et al., support this submission,
    adding that in the context of a public health care system, the expression of
    the appellants religious freedom creates a real risk of injury to the physical
    and mental integrity of already vulnerable and marginalized patients.

[76]

In
    advancing this submission, both the College and some of the interveners point
    to comments of the Supreme Court that the scope of freedom of religion is
    internally limited. For example, in
Trinity Western University v. College
    of Teachers
, 2001 SCC 31, [2001] 1 S.C.R. 772, at para. 36, the court
    stated that [t]he freedom to hold beliefs is broader than the freedom to act
    on them. See also para. 62 of
Amselem
, where the court stated:
    Conduct which would potentially cause harm to or interference with the rights
    of others would not automatically be protected.

[77]

In
    my view, the Divisional Court correctly determined that the contextual features
    identified by the College are more appropriately considered under the s. 1
    analysis, rather than in delineating the scope of the claimed religious
    freedom. While it is true that s. 2(a) is internally limited, that not all
    religious conduct is protected by the
Charter
, and that context is
    important in considering whether interference with religious freedom is
    trivial or insubstantial, the specific contextual features identified by the
    College are more relevant to the proportionality analysis under s. 1. As noted
    above, the Divisional Court concluded that at least some of the individual
    appellants are not free to practice medicine in accordance with their religious
    beliefs as a result of the effective referral requirements. That interference
    is not rendered trivial or insubstantial simply because physicians practice
    in a regulated profession that holds patient-centred care as a core value. However,
    that context is important when considering whether the effective referral
    requirements are minimally impairing, and when balancing the salutary and
    deleterious effects of the requirements. Accordingly, the contextual features
    identified by the College are considered under the s. 1 analysis, below.

[78]

The
    College also submits that the cost or burden imposed by the Policies on
    objecting physicians is, at its highest, a minor practice management issue. It only
    requires administrative changes to the physicians practice, such as using a
    designate, or hiring support staff. The College suggests that even sole
    practitioners, a group identified by the Divisional Court as particularly
    affected by the Policies, need only implement a system to triage specific
    patient requests, such as having a staff member connect patients with
    appropriate care providers or agencies, or partnering with another practitioner
    or clinic. Physicians operating in rural or remote regions, who cannot partner
    with a non-objecting physician, may discharge their responsibilities by
    connecting the patient to a social service agency. What the Policies require is
    a personal and good faith effort to ensure that the patient is connected to the
    service they are seeking. In the Colleges view, this burden constitutes a trivial
    or insubstantial interference.

[79]

The
    findings of the Divisional Court on this issue are supported by the record, in
    which some of the appellants depose that their religious beliefs would preclude
    them from giving a referral to another physician for MAiD, abortion or certain
    reproductive procedures and that they would be compelled to abandon their
    practice area rather than face prosecution for failing to do so. In my view, the
    Divisional Court correctly concluded that the interference with the appellants
    freedom of religion is neither trivial nor insubstantial.

Freedom of conscience

[80]

Having found that the Policies infringe the individual appellants
    freedom of religion, the Divisional Court declined to rule on the appellants
    alternative argument that the effective referral requirements also infringe the
    appellants freedom of conscience. The appellants briefly addressed this issue in
    oral submissions.

[81]

The
    interveners, the OMA and the CCRL et al., assert that the Divisional Court
    ought to have addressed the freedom of conscience issue and urge this court to
    do so.

[82]

It
    has been held that freedom of conscience and religion should be broadly
    construed to extend to conscientiously-held beliefs, whether grounded in religion
    or in a secular morality: see
R. v. Morgentaler
, [1988] 1 S.C.R. 30,
    at p. 179. The scope of freedom of conscience may be broader than freedom of
    religion, extending to the protection of strongly-held moral and ethical
    beliefs that are not necessarily founded in religion:
Roach v. Canada
    (Minister of State for Multiculturalism and Culture)
(1994), 113 D.L.R.
    (4th) 67 (F.C.A.), at p. 82.

[83]

The
    OMA submits that the Policies apply to physicians who object to the Policies
    for reasons of conscience and that the court should engage in a thorough
    analysis of this issue in order to give guidance to the medical profession.

[84]

The
    CCRL et al. submit that the effective referral requirements violate physicians
    preservative freedom of conscience  the freedom not to do what is perceived
    to be wrong. Forcing them to participate in perceived wrongdoing is an assault
    on their human dignity and deprives them of meaningful choice. They submit that
    this case affords an opportunity to give definition and scope to freedom of
    conscience, and to incorporate freedom of conscience principles into the
Oakes
analysis.

[85]

The
    evidentiary record in this case is insufficient to support an analysis of
    freedom of conscience. To the extent the individual appellants raise issues of
    conscience, they are inextricably grounded in their religious beliefs. There is
    an insufficient basis on which to determine whether there are Ontario
    physicians who would regard the effective referral of patients as equivalent to
    participating in the medical services at issue and who would object to doing so
    on the basis of conscience. I find that, at its core, the appellants claim is
    grounded in freedom of religion. This is reflected in the factual record and in
    the way the case was litigated in the Divisional Court. There is an
    insufficient basis to determine whether the options proposed by the College
    would meet the concerns of physicians with conscience-based objections and, if
    not, how the cost or burden on those physicians is to be weighed in the
    proportionality analysis. It is not appropriate to explore the contours of
    freedom of conscience in a case that does not have a robust evidentiary record.
    Like the Divisional Court, given my conclusion that the Policies infringe the
    appellants s. 2(a) religious freedom, I find it unnecessary to consider the
    appellants alternative argument that the Policies infringe the appellants s.
    2(a) freedom of conscience.

(3)

Section 15(1)

[86]

Section
    15(1) of the
Charter
provides:

Every individual is equal before and
    under the law and has the right to the equal protection and equal benefit of
    the law without discrimination and, in particular, without discrimination based
    on race, national or ethnic origin, colour, religion, sex, age or mental or
    physical disability.

[87]

The
    Divisional Court referred to the two-part test for establishing a breach of s.
    15(1) articulated in
Taypotat
, at paras. 19-20: (1) whether, on its
    face or in its impact, a law creates a distinction on the basis of an
    enumerated or analogous ground; and (2) whether the impugned law fails to
    respond to the actual capacities and needs of the members of the group and
    instead imposes burdens or denies benefits in a manner that has the effect of
    reinforcing, perpetuating or exacerbating their disadvantage.

[88]

The
    focus of the inquiry is whether a distinction has the effect of perpetuating
    arbitrary disadvantage on the claimant because of his or her membership in an
    enumerated or analogous group such that it is a discriminatory distinction:
Taypotat
,
    at paras. 16, 18; and
Quebec (Attorney General) v. A.
, 2013 SCC 5,
    [2013] 1 S.C.R. 61, at para. 331.

[89]

Applying
    this test, the Divisional Court dismissed the appellants claim that the
    Policies infringe their equality rights under s. 15(1) of the
Charter
.
    Without deciding whether the Policies create a distinction on the basis of
    religion, the Divisional Court held that the Policies do not have the effect of
    reinforcing, perpetuating or exacerbating a disadvantage or promoting prejudice
    against religious physicians. Nor do they restrict access to a fundamental social
    institution or impede full membership in Canadian society.

[90]

The
    appellants renewed their s. 15(1) submissions in their factum but did not
    address this issue in oral argument. Their written submissions were supported
    by the EFC et al. They say that the Policies draw a distinction between
    physicians who are religious and those who are not, and impose a burden on religious
    physicians that will force them to give up the practice of medicine involving
    direct patient contact rather than sacrifice their religious beliefs. The
    Policies force them to do so because of their religious beliefs and are,
    therefore, discriminatory in their effect.

[91]

The EFC
    et al. submit that the Divisional Court erred in finding that the second branch
    of the
Taypotat
test was not met. They submit that the inquiry under the
    second branch is whether the impugned Policies have a discriminatory effect.
    When looking at the effects, it must be considered whether the distinction
    restricts access to a fundamental social institution, or affects a basic
    aspect of full membership in Canadian society. They contend that employment
    is one such fundamental institution.

[92]

The
    College submits that the Divisional Court correctly found that the Policies do
    not infringe the appellants s. 15(1) equality rights. It says there was no
    evidence establishing a differential impact on religious physicians because the
    Policies apply to all conscientious objectors  regardless of whether the
    source of their objection is religious or secular.

[93]

On the
    second branch of the test, the College submits that the appellants have failed
    to show that any distinctive treatment that may be imposed by the Policies is
    discriminatory in nature.

[94]

I
    would not give effect to the appellants submissions, largely for the reasons
    given by the Divisional Court at paras. 128-31. As the Divisional Court stated,
    the Policies represent an attempt to balance equitable access to health care
    with physicians religious beliefs. The Policies, as clarified by the Fact
    Sheet, provide an appropriate balance for many physicians. Physicians who do
    not regard the procedures set out in the Fact Sheet as acceptable can
    transition to other areas of medicine in which these issues of faith or
    conscience are less likely to arise, if at all.

[95]

This
    takes me to the central issues in this appeal: whether the limits on the
    appellants religious freedom can be justified under s. 1 of the
Charter
.

(4)

Section 1: The Justification Analysis

[96]

Section
    1 of the
Charter
provides:

The
Canadian Charter of Rights and
    Freedoms
guarantees the rights and freedoms set out in it subject only to
    such reasonable limits prescribed by law as can be demonstrably justified in a
    free and democratic society.

[97]

The
    onus at this stage is on the College to establish, on a balance of probabilities,
    that the infringement of the appellants freedom of religion is a reasonable
    limit, demonstrably justified in a free and democratic society:
Multani
,
    at para. 43.

[98]

In
Oakes
,
    at pp. 135 and 138-39, Dickson C.J. articulated a framework for the s. 1
    analysis, which can be summarized as follows:

(a)

the
Charter
-infringing measure must be prescribed by law;

(b)

the objective of the impugned measure must be of sufficient importance
    to warrant overriding a constitutionally protected right or freedom;

(c)

the means chosen must be reasonable and demonstrably justified  this is
    a form of proportionality test which will vary in the circumstances, but
    requires a balancing of the interests of society with the interests of
    individuals and groups and has three components:

(i)

the measure must be
    rationally connected to the objective  i.e., carefully designed to achieve the
    objective and not arbitrary, unfair or based on irrational considerations;

(ii)

the means chosen should
    impair the
Charter
right or freedom as little as possible; and

(iii)

there must be proportionality
    between the salutary and deleterious effects of the measure.

(a)

Prescribed by Law

[99]

As
    noted above, s. 1 requires that limits to
Charter
rights and freedoms
    must be prescribed by law. The Policies were enacted by the College pursuant
    to its authority under the
RHPA
. The Divisional Court, citing
Greater
    Vancouver Transportation Authority
, held, at para. 137, that the
Charter
may apply to activities of a regulatory entity such as the College to the
    extent that its activities can be said to be governmental in nature. In
    particular, where a government policy is authorized by statute and sets out a
    general norm or standard that is meant to be binding and is sufficiently
    accessible and precise, the policy is legislative in nature and constitutes a
    limit that is prescribed by law for the purpose of the
Oakes
analysis. The parties do not dispute that this principle applies to the
    exercise of the Colleges statutory mandate and that the effective referral
    requirements of the Policies are limits prescribed by law.

(b)

Pressing and Substantial Objective

[100]

It must be established
    that the objective of the effective referral requirements is sufficiently
    important to warrant limiting a constitutional right or freedom: see
Multani
,
    at para. 43; and
Oakes
, at p. 138. This requires the identification of
    the purpose of the requirements.

[101]

The Divisional Court
    identified the purpose as the facilitation of equitable [patient] access to
    [health care] services. This appears to be an amalgam of the purpose
    identified by the appellants (ensuring access to health care) and by the College
    (the protection of the public, the prevention of harm to patients, and the
    facilitation of access to care for patients in our multi-cultural and
    multi-faith society).

[102]

The Divisional Court
    gave context to its description of the purpose of the effective referral
    requirements, by characterizing physicians as gatekeepers in a publicly-funded
    health care system, with duties not to abandon their patients and to put their
    patients interests ahead of their own. The court said, at para. 146:

As the CPSO notes, underlying this purpose [of the facilitation
    of patient access to health care] is the context of a publically funded health
    care system and a patient-centered environment. In this environment, physicians
    perform a positive role for their patients as gatekeepers to health care
    services and are subject to the obligation of non-abandonment, as well as the
    obligation to put the interests of their patient ahead of their own. It is
    entirely consistent with this environment and these obligations that the
    Policies seek to ensure that the religious and conscientious objections of
    physicians do not become a barrier to health care for patients who seek
    healthcare services to which particular physicians may object.

[103]

LEAF submits that the
    importance of promoting womens equality rights by facilitating equal access to
    health care should also be considered in determining whether the objective of
    the effective referral requirements is pressing and substantial.

[104]

Although initially the
    appellants did not strenuously challenge the Divisional Courts statement of the
    purpose of the effective referral requirements, their supplementary factum
    adopts an argument of the intervener, the JCCF, that the stated purpose of the
    effective referral requirements is imprecise and too broad, distorting the
    minimal impairment and balancing stages of the
Oakes
analysis and
    immunizing the Policies from meaningful scrutiny. Neither the appellants nor the
    JCCF propose an alternative formulation of the purpose of the requirements.

[105]

The College contends
    that the Divisional Court did not err and the objective articulated is neither
    overbroad nor imprecise.

[106]

In my view, the Divisional
    Court did not err in articulating the purpose of the effective referral
    requirements. The Divisional Court struck an appropriate balance in identifying
    a purpose that is more specific than the animating social value of the
    Policies, but broader than a virtual repetition of the effective referral requirements:
    see
R. v. Moriarity
, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 28.
    The purpose identified is firmly rooted in both the language of the Policies
    and the history and evolution of the Policies themselves.

[107]

The Divisional Court
    also found, at paras. 142, 146-150, that this purpose was a pressing and
    substantial objective for the purpose of the
Oakes
analysis and, at
    para. 150, that, the evidence in the record establishes a real risk of a
    deprivation of equitable access to health care, particularly on the part of the
    more vulnerable members of our society, in the absence of the effective
    referral requirements of the Policies.

[108]

The appellants concede
    that it was open to the Divisional Court to rely on a reasoned apprehension of
    harm to find that the Policies serve a pressing and substantial objective.
    However, they submit that a reasoned apprehension of harm cannot be relied on
    in the last two branches of the
Oakes
proportionality analysis. They
    say that evidence of actual harm is required for the minimal impairment and
    proportionality analyses. This submission is addressed below.

(c)

Proportionality

[109]

The third requirement
    of the
Oakes
analysis is that the means chosen to limit the right or
    freedom in question must be reasonable and demonstrably justified. As noted, this
    requires an analysis of whether: (1) there is a rational connection between the
    means and the objective; (2) the means are minimally impairing; and (3) there
    is proportionality between the salutary and deleterious effects of the measure:
Oakes
, at p. 139; and
Carter
, at para. 94.

(i)

Rational Connection

[110]

The first step in the
    proportionality analysis asks whether the means limiting the
Charter
right or freedom are rationally connected to the objective. That is, whether
    they are designed to further the objective. They must not be arbitrary, unfair
    or based on irrational considerations:
Oakes
, at p. 139.

[111]

The College must show,
    by reason and logic, and on a balance of probabilities, that the restriction on
    the
Charter
right or freedom serves its intended purpose:
RJR-MacDonald
    Inc. v. Canada (Attorney General)
, [1995] 3 S.C.R. 199, at para. 153. This
    prevents arbitrary interference with the right or freedom:
Hutterian
    Brethren
, at para. 48.

[112]

The Divisional Court
    found a rational connection between the effective referral requirements and the
    stated purpose. The limits on physicians religious freedom would likely
    further the goal of equitable access to health care. At para. 154, the Divisional
    Court stated:

In this case, the effective referral provisions of the Policies
    guide physicians on how to uphold their professional and ethical obligations of
    patient-centered care and non-abandonment within the context of the public
    healthcare system in the Province. It is reasonable to conclude that, in doing
    so, the Policies will facilitate patient access to care, based on the
    gatekeeper function of physicians in Ontario. As such, there is a rational
    connection between the objective of the Policies and the means of achieving
    that objective.

[113]

I agree with the
    Divisional Court that, as a matter of logic and common sense, requiring
    objecting physicians to give an effective referral for MAiD, abortion or
    reproductive health care services will promote equitable patient access to
    those health care services.

(ii)

Minimal Impairment

[114]

At this step in the
    analysis, the College is required to show that the Policies impair freedom of
    religion as little as reasonably possible in order to achieve their objective:
RJR-MacDonald
,
    at para. 160. As the Supreme Court observed in
Hutterian Brethren
, at
    para. 53, this question asks whether there are less harmful means of achieving
    the legislative goal. The appellants say that there are less harmful means,
    namely a generalized information model and the means employed in other
    jurisdictions.

Evidence of harm

[115]

Relying on the Supreme
    Courts decision in
Multani
, the appellants submit that a reasoned
    apprehension of harm is not sufficient to justify an impugned measure at this
    stage of the
Oakes
analysis. They contend that evidence of actual harm
    is required and that the College did not meet this evidentiary burden.

[116]

The College submits
    that actual harm is not required. The same evidentiary standard applies for every
    branch of the
Oakes
analysis, including the minimal impairment and
    proportionality branches and the Divisional Court correctly found that there
    was sufficient evidence at each stage to support its conclusions. There was
    evidence that, in the absence of the Policies, vulnerable patients would
    experience harm due to interference or delay in accessing care, shame and
    stigma associated with a physicians refusal to provide care, and loss of faith
    in physicians and in the health care system. These circumstances could result
    in complete denial of care in some cases.

[117]

The issue of harm must
    be considered in context.

[118]

The record confirms the pivotal role of family physicians, such as
    the appellants, as the key point of access to the services at issue for the
    majority of patients. This is highlighted in the supplementary affidavit of Dr.
    Danielle Martin, filed by the College. Dr. Martin is the Vice President of
    Medical Affairs and Health Systems Solutions at Womens College Hospital in
    Toronto. She is herself certified as a family physician and is a Fellow of the
    College of Family Physicians of Canada. She deposed as follows:

The reality of health care in Ontario outside hospitals is that
    patients are deeply reliant on their family physicians to connect them with the
    resources they need, and the way in which that connection occurs is through a
    referral. This is especially true in moments of medical and emotional
    vulnerability, such as the end of life and in the case of an unwanted
    pregnancy.

[119]

Dr. Martin also deposed that:

This includes rural communities and cultural/ethnic
    neighbourhoods with unilingual community members, where patients do not have
    meaningful choices about their primary care provider, and they cannot access
    specialty care through other channels.



In most communities citizens do not have direct access to
    multiple different specialists for second and third opinions; they rely on
    their family physicians to refer them to a specialist whose scope of practice
    meets their needs, and specialists refer to one another on the same basis.

[120]

The evidence also bears out Dr. Martins observations that, given
    the manner in which health care is currently practiced and made available in
    Ontario, effective referral is the key to accessing health care services of all
    kinds, including the wide variety of services to which some physicians have
    religious objections.

[121]

The medical procedures
    to which the appellants object (an objection shared to varying degrees by the
    individual appellants and members of the appellant organizations) include:
    abortion, contraception (including emergency contraception, tubal ligation, and
    vasectomies), infertility treatment for heterosexual and homosexual patients,
    prescription of erectile dysfunction medication, gender re-assignment surgery,
    and MAiD. It is impossible to conceive of more private, emotional or challenging
    issues for any patient. The evidence establishes that these issues are
    difficult for patients to raise and to discuss, even with a trusted family physician.
    The evidence also establishes that some of these decisions frequently confront
    already vulnerable patients: patients with financial, social, educational or
    emotional challenges; patients who are old, young, poor or addicted to drugs;
    patients with mental health challenges or physical or intellectual disabilities;
    patients facing economic, linguistic, cultural or geographic barriers; and patients
    who do not have the skills, abilities or resources to navigate their own way
    through a vast and complicated health care system.

[122]

The evidence also establishes
    that decisions concerning many of these procedures are time-sensitive 
    obviously so in the case of MAiD, abortion and emergency contraception. Delay
    in accessing these procedures can prevent access to them altogether.

[123]

Abortion and MAiD
    carry the stigmatizing legacy of several centuries of criminalization grounded
    in religious and secular morality. The evidence discloses that this
    stigmatization is still evident in some quarters of the medical community and
    that it can serve, unintentionally or not, as an obstacle, or an outright
    barrier to these procedures.

[124]

The vulnerable
    patients I have described above, seeking MAiD, abortion, contraception and
    other aspects of sexual health care, turn to their family physicians for
    advice, care and, if necessary, medical treatment or intervention. 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.

[125]

I do not agree that
Multani
supports the appellants argument that actual harm must be demonstrated. Justice
    Charron, who spoke for the majority, did not require that harm itself be
    conclusively established. What she said, at para. 67, was: I agree that it is
    not necessary to wait for harm to be done before acting, but the
existence of concerns relating to safety must be unequivocally
    established
for the infringement of a constitutional right to be
    justified (emphasis added). In this case, concerns relating to the safety of
    vulnerable patients as a result of deprivation of access to health care
    services were, and have been, conclusively established. The next issue is
    whether those concerns could have been addressed by less impairing means.

Less impairing means

[126]

In the Divisional
    Court, the appellants asserted that there were less impairing means of achieving
    the objective of the effective referral requirements. These included
    maintaining a public information line for information regarding particular
    procedures or pharmaceuticals to which physicians object, and requiring
    physicians to provide information to patients about how to access abortion and contraception
    and establishing a coordination service or registry for MAiD, as was ultimately
    done through the CCS. They also pointed to policies of regulators in other
    provinces, which they claimed were less impairing because they do not require
    objecting physicians to provide a direct, individualized referral. I will
    discuss the latter argument in the next section.

[127]

The Divisional Court
    carefully examined the Colleges evidence concerning its studies and
    consultations preceding the adoption of the Policies. These included an
    analysis of alternatives, including variants of the self-referral model advocated
    by the appellants. The Divisional Court found, at para. 167, that, none of
    these alternative models represents a less drastic means of achieving the
    objective of the Policies in a real and substantial manner and, therefore, that
    the rights of the Individual Applicants are impaired no more than necessary.
    That finding of fact attracts deference in this court.

[128]

After conducting a
    detailed review of the evidence regarding the Colleges Working Groups on both
    the Human Rights Policy and the MAiD Policy, Wilton-Siegel J. concluded, at
    para. 170, that the self-referral model inevitably entails a real risk that
    vulnerable individuals and populations will not be able to access the requested
    medical services or will not be able to do so in a timely manner. He added
    that, in any event, there was evidence that the self-referral model would not
    satisfy some of the individual appellants. He stated, at para. 170:

[I]n my view, these reasons also amply justify the CPSOs
    conclusion that the Applicants specific proposals for alternative means to
    ensure a patients access to requested medical services would not be effective.
    As discussed further below, each of the Applicants proposals relies on a self-referral
    model which inevitably entails a real risk that vulnerable individuals and
    populations will not be able to access the requested medical services or will
    not be able to do so in a timely manner. In fact, while the Applicants argue
    that a physicians obligation should be limited to providing information to
    patients regarding access to health care services, the Individual Applicants do
    not hold the same views regarding a satisfactory informational requirement.
    Several of the Individual Applicants would object to the provision of
    information regarding the telephone number and address of non-objecting
    physicians, other health care providers or agencies including the Care Co-ordination
    Service. Further, while the Care Co-ordination Service described above has
    recently been established in accordance with the requirement under Bill C-14,
    the Applicants testified that referral of a patient to the Service would entail
    the same concerns for many religious physicians as referral to a non-objecting
    physician. Attaching these limitations to alternatives based on the self-referral
    model reinforces the fact that such model does not point to a significantly
    less intrusive and equally effective measure for ensuring access to
    healthcare.

[129]

He also noted, at
    para. 171, that the appellants proposals were designed to preserve
their
rights, and were not directed  as they should
    have been  to promoting the objective of equitable access to health care:

Thirdly, as a related matter, while the Applicants have
    proposed alternative means of addressing the infringement of their rights of
    freedom of religion, they have not done so on a basis that is directed toward
    preserving patients
Charter
rights of equitable access to health
    care, that is, with a view to furthering the objective of the Policies. As
    discussed below, the Applicants do not acknowledge that the issues in these
    proceedings engage any
Charter
rights of patients. Accordingly, the objective
    of the alternatives proposed by the Applicants is the preservation of the
Charter
rights of religious physicians to the extent necessary to avoid participation
    in the services to which they object. The significance for present purposes,
    where the issue is whether the means chosen impair the right no more than is
    necessary to achieve the objective of patient access to health care, and in
    particular the objective of equitable access to health care, is that the
    Applicants have failed to establish that their proposed alternatives are
    directed toward this objective, much less that such objective could be achieved
    on the basis of less impairing means.

[130]

I have quoted these
    extracts from the Divisional Courts reasons at some length because they include
    findings of fact that are firmly rooted in the evidence. The appellants have
    not demonstrated any error in these findings. In my view, they are fatal to the
    appellants submissions on the issue of minimal impairment.

[131]

As I have noted, the
    appellants advance what they now call a generalized information model as a
    less impairing alternative, which they claim meets the Colleges objective.
    They acknowledge, however, that generalized information is essentially a
    different label for what they described as self-referral in the Divisional
    Court, and which the Divisional Court rejected. This model would permit
    physicians to provide patients with information concerning resources, such as the
    CCS or Telehealth, to enable patients to locate a non-objecting physician who
    would provide abortion, MAiD, or other services. They say this is a reasonable
    and less drastic alternative to an effective referral.

[132]

The College argues
    that the appellants generalized information model is flawed because it does
    not respond to the realities of the vulnerable patient population and will not achieve
    the objective of equitable access to health care. The generalized information
    model places the burden on the patient to self-refer to find a physician who
    will provide the health care they seek. As discussed earlier, this may result
    in delay in obtaining time-sensitive medical services or it may foreclose
    access to care altogether. One can reasonably anticipate that the loss of the
    personal support of a trusted physician would leave the patient with feelings
    of rejection, shame and stigma. Left to their own devices when he or she most
    needs personal support and advice, the patient would be left to negotiate the
    health system armed with brochures, telephone numbers and websites.

[133]

The issue of shame and
    stigma is not theoretical. One of the individual appellants was asked on
    cross-examination what she would do if a patient came to her office seeking an
    abortion. The physician in question has a sign posted in her office telling
    patients that she will not refer for abortions or assist in obtaining an
    abortion, and will not assist with other medical practices such as MAiD,
    because she cannot in good conscience assist patients with those services. Nevertheless,
    she stated that if a patient sought an abortion she would ask why the patient
    was interested in abortion and whether there was anything that could help the
    patient carry the baby to term. She would also discuss the very obvious implications
    of an abortion, including that the baby dies and that there might be some
    psychiatric issues after an abortion. Finally, she might refer the patient to
    a resource that offered counselling, but not one that would provide an
    abortion. By using this example, I do not suggest that the physician was
    unsympathetic to the circumstances of the hypothetical patient. What I do
    suggest is that the physicians views could reasonably be expected to have a
    deterrent and stigmatizing effect on that patient, impeding her access to the
    medical services she had requested.

[134]

The College contends
    that there is no evidence in the record that supports the appellants position
    that Telehealth functions as a patient navigator or actually connects
    patients with the service they are seeking, particularly the services at issue
    in this proceeding. Moreover, the appellants proposal does not account for the
    Divisional Courts finding of fact that at least some objecting physicians
    would refuse to provide patients with generalized information on the grounds
    that it would make them complicit in the acts.

[135]

The Colleges position
    is supported by the interveners, Dying with Dignity Canada, the Canadian
    HIV/AIDS Legal Network et al., and LEAF. These interveners highlighted the
    needs and vulnerabilities of the patients they serve, their dependence on their
    health care providers and their need for a direct, personal and effective referral
    to a health care professional in the event of a religious or conscientious
    objection by their physician.

[136]

Dying with Dignity Canada
    notes that communication itself is a significant barrier for many patients
    seeking MAiD. Those patients are entitled to access MAiD in a manner that
    protects their privacy rights. They rely on the confidential and personal
    assistance of their physicians to make the necessary contacts with a medical
    service for MAiD. Some may not have friends, family or caregivers who will help
    connect them with a clinician or the CCS. Some may not wish to involve others
    in their care decisions. Expecting patients who qualify for MAiD to navigate
    themselves through the medical system is unrealistic in many cases.

[137]

Dying with Dignity Canada
    also notes that delay is a significant practical concern for patients seeking
    MAiD. If a patient loses capacity to consent, they are no longer eligible for
    MAiD. Once a patient is connected to a willing clinician, the process for
    actually obtaining MAiD can take time. By placing the onus on patients to
    contact the CCS or Telehealth, the appellants model increases the possibility
    of front-end delay in accessing MAiD.

[138]

The
    vulnerability of patients seeking MAiD is self-evident, but it is firmly
    established in the evidentiary record. Dr. Kevin Imrie is a physician at
    Sunnybrook Health Sciences Centre in Toronto, who gave evidence on behalf of
    the College. Dr. Imrie observed that when patients meet the criteria for MAiD they
    are necessarily vulnerable physically and psychologically. They are also exceptionally
    dependent on their health care providers. At the time his affidavit was sworn, Dr.
    Imrie had participated in three cases of MAiD. He deposed that,

Patients who find themselves in the position of seeking MAiD are
    often in the most vulnerable of positions, are very sick, and facing all of the
    physical, mental and emotional burdens and trauma associated with facing the
    end of their lives. During such a time, they are enormously dependent upon
    their doctors and the health care system for what quality of life they do have.

[139]

Similarly, Dr. Edward
    Weiss, a family physician and the contact person for MAiD for the William Osler
    Health System in Brampton and Etobicoke, deposed that at least seven patients whom
    he had seen for MAiD in the previous year would not have easily, or perhaps not
    at all, been able to access the CCS without the assistance of a health care
    professional.

[140]

The interveners, the Canadian
    HIV/AIDS Legal Network et al., point out that patients living with HIV/AIDS face
    stigmatization and discrimination related to their health care needs. The same
    is true of
transgender patients who encounter challenges in
    accessing appropriate health care, hormonal treatments and transition-related
    services.
These barriers add to the challenges of patients with HIV/AIDS
    or transgender patients in accessing MAiD and other health care services and
    accentuate the need for direct and personal referrals.

[141]

The appellants own evidence illustrates these challenges. One of
    the individual appellants described how she had responded to a transgendered patient
    who sought assistance in transitioning. She explained her religious convictions
    to the patient: I believe that God has created us male and female, and that
    choosing to change your gender is working against how God has made you. And
    ultimately when people change their gender they think that life is going to be
    better but theres a high suicide rate when people change their gender. The physician
    referred the patient to a psychiatrist for gender dysphoria. Again, I do not
    doubt the physicians sincerity or her dedication to her patient. Her evidence demonstrates,
    however, how physicians religious objections can be a barrier to access to health
    care for marginalized groups. Such remarks could reasonably be expected to
    cause the patient stigma and shame.

[142]

LEAF submits that many
    women, particularly women from marginalized communities, may lack the necessary
    knowledge of the health care system, skills, or resources to seek out and
    obtain reproductive health services independently. The inability to access
    appropriate reproductive health care can result in unwanted pregnancies,
    psychological stress and increased risk of morbidity. LEAF submits that due to
    historic inequalities in accessing the medical system, many women are dependent
    on physician approval in order to access reproductive services. For these
    women, an effective referral from their primary health care provider may be the
    only channel to access the care they need.

[143]

LEAFs submission is supported by the evidence, which establishes
    that access to abortion and contraception continues to be uneven in Canada,
    in the words of Dr. Martin, and that the invocation of conscientious and
    religious objections by physicians impedes access to abortion, contraception
    and other reproductive medical procedures and pharmaceuticals.

[144]

Dr. Sheila Dunn is the Research Director of the Family Practice
    Health Centre of Womens College Hospital and an active member of the clinical
    staff. She spent approximately 13 years as the Medical Director of the Bay
    Centre for Birth Control in Toronto, a clinic that offers comprehensive sexual
    and reproductive health care to women, including contraception, abortion,
    treatment, testing, information, counselling and referral for other sexual
    health services.

[145]

Dr. Dunns evidence demonstrates that issues of reproductive health
    are particularly impactful for new immigrants, youth, Indigenous women, women
    in remote or rural communities and people with limited economic means. Many of
    these patients are reluctant to raise issues of sexual and reproductive health
    on their own  as a result, they have higher rates of unmet needs for
    contraception, unintended pregnancy and abortion.

[146]

The evidence underscores the impact of a physicians refusal to
    provide such services for religious reasons. Dr. Barbara Bean is a counsellor
    at the Choice in Health Clinic, a non-profit abortion clinic in Toronto. She
    has over 45 years experience in the reproductive health field and has counselled
    thousands of women. Dr. Bean spoke to the impact on patients of their
    physicians religious and moral beliefs, including delay, trauma, shame and
    self-doubt:

I estimate that hundreds of these women came to us having suffered
    delays in finding us after first contacting their family physicians or others
    in the health care sector seeking information about, and possibly a referral for,
    abortion services. In many cases, women would tell me that not only would their
    doctors not refer them or help them find care, but their doctors would voice
    their own personal feelings and religious or moral objections to abortion when
    the patients raised the issue with them. In other cases, the reasons for the
    doctors failing to assist their patients were not necessarily tied to religious
    or moral reasons.

[Patients whose physicians refused to provide assistance in
    accessing abortions] felt traumatized and actively denigrated by their
    physicians denial of assistance. Their doctors lack of support and lack of
    empathy in refusing to provide a referral for abortion care caused them to
    doubt their decisions to seek abortions, and to feel shame and guilt about
    their decisions. They deeply felt their doctors lack of respect for them and
    their choices.

[147]

In my view, the
    appellants fresh evidence fails to demonstrate that a generalized information
    model, providing patients with information about the CCS, Telehealth or other similar
    resources, would address the needs of vulnerable patients seeking the most
    intimate and urgent medical advice and care. Ultimately, the College considered
    and rejected self-referral models like the model proposed by the appellants.
    Based on the Colleges evidence, the Divisional Court found that
    self-referral models could not achieve the objective of ensuring equitable
    access to health care given the inevitable risk to vulnerable patients that
    such models entail. That finding remains uncontroverted.

[148]

I turn now to the
    appellants submission that the policies adopted in other jurisdictions provide
    models that would be reasonable and less impairing alternatives to the
    Policies.

Policies in other jurisdictions

[149]

The appellants,
    supported by the interveners, Bnai Brith et al., submit that in the face of less
    impairing and equally effective means adopted in other jurisdictions, the
    College was required to prove that these alternatives were not a suitable
    option. They rely on the following passage from para. 160 of
RJR-Macdonald
:
    if the government fails to explain why a significantly less intrusive and
    equally effective measure was not chosen, the law may fail. The appellants say
    that objectives of policies in place in other jurisdictions which adopt
    alternative means are substantially similar to the objective being advanced by
    the College and thus represent significantly less intrusive and equally
    effective measures.

[150]

The College disagrees
    with the appellants reliance on policies in other jurisdictions as a matter of
    law and fact. It submits that the Divisional Court correctly found that other
    Canadian medical regulators have substantially similar requirements to those
    imposed by the Policies. They point in particular to the policies in place in
    Saskatchewan, Quebec and Nova Scotia. For example, the policy in Nova Scotia
    requires that the physician complete an effective transfer of care. Counsel
    for the appellants acknowledged that this requirement is similar to the
    Policies and that it could well be unacceptable to some religious physicians.

[151]

In any event, the
    College submits that case law governing minimal impairment accounts for the
    fact that different provinces may draw the line at different places. The fact
    that some provinces may have done so does not establish that the Colleges chosen
    means are not minimally impairing.

[152]

The law does not
    require that the College choose the least intrusive or the least restrictive
    means, but only that the means chosen fall within a range of reasonable
    alternatives, while limiting the
Charter
right or freedom as little as
    reasonably possible:
Gordon v. Canada (Attorney General)
, 2016 ONCA
    625, 351 O.A.C. 44, at para. 261, leave to appeal to S.C.C. refused, [2016]
    S.C.C.A. No. 444 and [2016] S.C.C.A. No. 445, citing
R. v. Swain
,
    [1991] 1 S.C.R. 933, at p. 983.

[153]

The fact that other
    jurisdictions have established policies that the appellants regard as less
    impairing is not persuasive. As the Divisional Court noted, the parties did not
    agree on the manner in which those policies operate. Some of the policies can
    be interpreted to mean that, in some cases, a physician may be required to give
    an effective referral to ensure that a patient receives the medical services he
    or she requests or requires. There was also evidence to support the Divisional
    Courts conclusion referred to above that regulations in a number of other
    Canadian jurisdictions impose referral requirements similar to those adopted by
    the College.

[154]

The College was not
    bound to accept the lowest common denominator, whether it is labelled
    self-referral or generalized information, when it found, through its own
    studies, that that model would not protect patients. I agree with the
    observation of the Divisional Court, at para. 174, citing to
Irwin Toy Ltd.
    v. Quebec (Attorney General)
, [1989] 1 S.C.R. 927, at p. 999, that
    legislative action to protect vulnerable groups is not necessarily restricted
    to the least common denominator of actions taken elsewhere and that minimal
    impairment does not require legislatures to choose the least ambitious means
    to protect vulnerable groups.

[155]

A measure of deference
    is owed to the Colleges policy judgment regarding how best to balance the
    competing interests of physicians and their patients. The Policies represent a
    difficult policy choice, one which the College, as a self-governing
    professional body with institutional expertise in developing policies and
    procedures governing the practice of medicine, was in a better position to make
    than a court:
M. v. H.
, [1999] 2 S.C.R. 3, at paras. 78-79; and
Green
    v. Law Society of Manitoba
, 2017 SCC 20, [2017] 1 S.C.R. 360, at para. 25.
    The College was uniquely qualified to craft the Policies in a manner sensitive
    to the conditions of the practice of medicine in Ontario:
Trinity Western
,
    at para. 37. Courts must be cautious not to overstep the bounds of their
    institutional competence in reviewing such decisions. Often, as in this case,
    the proper course of judicial conduct is to afford a measure of deference to
    the Colleges judgment:
Wynberg v. Ontario
(2006), 82 O.R. (3d) 561
    (C.A.), at para. 184, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No.
    441; and
Carter
, at paras. 97-98.

[156]

There is more,
    however. The fundamental problem with the appellants proposed alternative model
    is the same as identified by the majority of the Supreme Court in
Hutterian
    Brethren
. The Hutterian claimants objected to having their photographs taken,
    which the province required in order to hold a drivers licence. The province,
    which was concerned about the misuse of drivers licences for identity theft,
    proposed that those who objected on religious grounds could have their
    photographs held in a central photo bank. The claimants proposed instead that
    their licences could be stamped, Not to be used for identification purposes.
    The Supreme Court observed, at paras. 57-60, that the deficiency in the
    claimants proposal was that it compromised the provinces objective of
    minimizing the risk of misuse of drivers licences for identify theft. The
    proposal, instead of asking what is minimally required to realize the
    legislative goal, asks the government to significantly compromise it:
Hutterian
    Brethren
, at para. 60. Accordingly, the alternative proposed by the
    Hutterian claimants was not appropriate for consideration at the minimal
    impairment stage of the analysis.

[157]

The same is true here.
    The alternatives proposed by the appellants and some of the interveners are
    directed to minimizing the burden of the Policies on objecting physicians, not
    to advancing the goal of equitable access to abortion, MAiD, contraception and sexual
    and reproductive health care. The appellants alternatives would compromise the
    Colleges goal, because they would require already vulnerable patients to attempt
    to navigate the health care system on their own, without any direct personal assistance
    from their physicians, whom they entrust to act as their navigators for health
    care services. This would impair equitable access to health care.

[158]

At para. 177 of his reasons,
    Wilton-Siegel J. concluded:

[T]he Policies fall within the range of reasonable alternatives
    for addressing physicians conscientious and religious objections to particular
    medical procedures and pharmaceuticals given the objective of the effective
    referral requirements of the Policies. As such, I find that the effective
    referral requirements of the Policies satisfy the minimal impairment test under
Oakes
.

[159]

That conclusion was
    supported by the evidence before the Divisional Court. It is confirmed by the
    Colleges fresh evidence before this court.

Conclusion on minimal impairment

[160]

On the basis of the
    evidence before the Divisional Court, the findings of the Divisional Court, the
    fresh evidence adduced in this court and the submissions of the parties and the
    interveners, I am satisfied that the alternatives identified by the appellants
    are fatally flawed. While arguably less impairing of
their
rights, they are focused on
their
rights and not
    on the objective of the effective referral requirements or the interests of
    vulnerable patients. The evidence shows that the appellants generalized
    information model, like other self-referral models, will impair equitable
    access to health care rather than promote it. It will impair equitable access
    to health care because it will enable objecting physicians to abandon their role
    as patient navigators without an appropriate transfer of the patient to another
    physician or service. In view of the vulnerability of the patients, this is
    just not adequate. I will not repeat the Divisional Courts reasons at para.
    171, cited earlier, but they are equally apt here.

[161]

I am also satisfied
    that if something more than a reasoned apprehension of harm is required at this
    stage of the analysis, the College has proven that harm will, in fact, occur to
    vulnerable groups in the absence of the effective referral requirements.
    Ultimately, I am satisfied that the College, before this court and the
    Divisional Court, discharged its onus of proving that the effective referral
    requirements are minimally impairing of the appellants religious freedom.

(iii)

Balancing the Salutary and Deleterious Effects

[162]

The final requirement
    of the
Oakes
proportionality analysis is that there must be a
    proportionality between the effects of the measures which are responsible for
    limiting the
Charter
right or freedom, and the objective which has
    been identified as of sufficient importance:
Oakes
, at p. 139. At
    para. 73 of
Hutterian Brethren
, McLachlin C.J. articulated the
    question as being: are the overall effects of the law on the claimants
    disproportionate to the governments objective? At para. 76, she explained the
    utility of this stage of the
Oakes
analysis:

It may be questioned how a law which has passed the rigours of
    the first three stages of the proportionality analysis  pressing goal,
    rational connection, and minimum impairment  could fail at the final inquiry
    of proportionality of effects. The answer lies in the fact that the first three
    stages of
Oakes
are anchored in an assessment of the laws purpose.
    Only the fourth branch takes full account of the severity of the deleterious
    effects of a measure on individuals or groups.

[163]

She observed, at para.
    85, that the proponent of the measures is not required to produce positive
    proof that the measure will be beneficial and that it is enough to show by
    reason and evidence that it will be.

Salutary and deleterious effects

[164]

Prior to engaging in
    the balancing process, the Divisional Court identified the salutary and
    deleterious effects of the effective referral requirements of the Policies. I
    have mentioned these above. In broad overview, the requirements enhance
    equitable access to MAiD, abortion and other services and reduce or eliminate
    barriers, delays, anxiety and stigmatization of vulnerable patients in
    circumstances in which their physicians object to the services on grounds of
    religion or conscience.

[165]

The deleterious
    effects of the requirements for objecting physicians are the burden and anxiety
    associated with a choice between their deeply-held religious beliefs and
    complicity in acts which they regard as sinful. For some objecting physicians,
    but not all, the options set out in the Fact Sheet are not compatible with
    their beliefs and they are faced with the additional burdens of choosing
    between leaving the field of medicine in which they practice, leaving Ontario
    to practice elsewhere, or leaving the practice of medicine altogether.

Balancing

[166]

The Divisional Court
    noted that three contextual considerations are relevant to the proportionality
    analysis. First, the right of patients to equitable access to lawful and provincially-funded
    health care services engages a s. 7
Charter
right of patients. This
    observation
signals that in the proportionality analysis, the
    court must consider not only the
Charter
rights and freedoms of objecting physicians, but also the interests of
    patients.

[167]

Second, the Divisional
    Court observed that physicians have no right to practice medicine, let alone a
    constitutionally-protected right to do so. Third, it noted that Ontario physicians
    practice in a single-payer, publicly-funded health care system, which is
    structured around patient-centered care. In the case of a conflict, the
    interests of patients come first, and physicians have a duty not to abandon their
    patients.

[168]

Turning to the
    balancing, the Divisional Court noted the evidence that the goals of the
    Policies will be compromised if patients are simply given information and then
    expected to access services themselves.

[169]

The Divisional Court described
    the costs or burdens on objecting physicians. It noted that for many Ontario
    physicians, referral of a patient for the procedures at issue does not raise
    religious or ethical concerns. The concerns of others with religious
    objections, including some of the individual appellants, can be addressed by
    the options in the Fact Sheet. This is particularly the case for physicians who
    practice in a hospital, a clinic or a family practice group. Thus, the
    effective referral requirements are primarily a concern for those who do not
    practice in such a setting or those who find the options unacceptable. The principal,
    and perhaps the only, means of addressing these concerns would be to focus
    their practice in a specialty or sub-specialty that would not present
    circumstances in which the Policies would require an effective referral of
    patients in respect of medical services to which they object. While this is not
    a trivial impact, it permits an objecting physician to continue to practice
    medicine and is less serious than outright exclusion from practice.

[170]

The Divisional Court concluded
    that to the extent there remains any conflict between patient rights and
    physician rights that cannot be reconciled within the Policies, the former must
    govern.

[171]

The appellants make
    two objections to the Divisional Courts proportionality analysis.

[172]

First, they submit
    that in order for a
Charter
violation to be found to be proportionate,
    there must be actual evidence of the salutary effects flowing from the means
    chosen. In this case, they say that there is no evidence that the Policies will
    have any salutary effect. Far from improving access to health care, they say,
    the Policies will force physicians like the appellants to leave family
    practice, move to other practice areas, leave Canada, or even cease practicing medicine
    altogether. They say that the Policies will harm, not help, the public.

[173]

Second, the appellants
    challenge the Divisional Courts conclusion that objecting physicians could
    change the nature of their practice so as to avoid coming into contact with
    issues addressed by the Policies.

[174]

Turning to the first
    point, I have already reviewed much of the evidence, which was accepted by the
    Divisional Court and which supports its conclusion at para. 186, that:

[I]t is reasonable to expect on the evidence and logic that an effective
    referral requirement will make a positive difference in ensuring access to
    healthcare, and in particular equitable access to healthcare, in circumstances
    in which a physician objects on religious or conscientious grounds to the
    provision of medical services requested by a patient.

[175]

The individual appellants
    themselves gave evidence that they cannot take steps which make them complicit
    in the provision of services to which they object. The evidence of the College was
    that the Policies were necessary to provide equitable access to health care.

[176]

The Divisional Court concluded
    based on the evidence before it that it was not in a position to evaluate the
    impact on health care and patients due to physicians leaving family practice or
    the practice of medicine in Ontario. The appellants have not adduced evidence
    before this court to undermine that conclusion. Accordingly, it remains unclear
    whether such a response to the Policies either has occurred or is likely to
    occur in any meaningful ways.

[177]

The second issue
    relates to the burden on physicians of changing their practice. Much of the
    fresh evidence was directed to this issue. The appellants take the position
    that the burden imposed on objecting physicians amounts to a bar from
    practicing direct patient care. They submit that the fresh evidence shows that
    while it is theoretically possible for a physician to change specialty or
    sub-specialty, there are significant practical challenges in doing so.

[178]

They further submit
    that in addition to the deleterious effects on the physicians, the overall
    effect of the Policies is reduced access to health care for patients due to
    physicians leaving Ontario, leaving the practice of medicine, or entering a retraining
    program.

[179]

The position of the
    appellants is supported by the OMA. The OMA submits that the Divisional Courts
    balancing of the salutary and deleterious effects was not based on an
    appropriate evidentiary record. It submits that the balancing must be revisited
    in light of the fresh evidence regarding the practical difficulties of changing
    a physicians specialty or scope of practice. Those difficulties include the limited
    number of retraining positions available, the duration of retraining, family
    considerations, financial constraints, and uncertainty about new practice
    opportunities.

[180]

The EFC et al. submit
    that the Policies assume that religious accommodation would only have
    deleterious effects and overlook the salutary effects for the greater public
    good associated with accommodating religious minorities in the medical
    profession.

[181]

On the issue of the
    cost or burden imposed by the Policies, the appellants rely on the fresh
    evidence of Dr. Parveen Wasi, the Associate Dean, Postgraduate Medical
    Education, at the Faculty of Health Sciences at McMaster University in
    Hamilton. Dr. Wasi explains how Ontarios Re-Entry Program works in practice,
    what the consequences are for working physicians, and the associated costs and
    risks to a physician who applies to that program. He explains that re-entry
    applicants face hurdles, including a high demand for positions from recent
    graduates, funding constraints, internal university priorities, and overall
    uncertainty about acceptance. Not only is it difficult to be admitted to the
    re-entry program, there are financial and other burdens associated with going
    through a residency program, which range in length from two to seven years.

[182]

The appellants also
    rely on the evidence of Dr. Nuala Kenny, Emeritus Professor at Dalhousie
    University and Founding Chair of the Department of Bioethics. Dr. Kenny comments
    on the costs and burdens for physicians who might be expected to change the
    nature of their practice to a safe specialty. She opines that there is no
    way for physicians involved in direct patient care to be protected from a
    request for an effective referral.

[183]

The College submits
    that, at its highest, the impact of the Policies is minimal and the burden or
    cost imposed does not require a physician to change their speciality or
    sub-speciality. The burden is one of practice management and can be addressed through
    administrative measures such as implementing a system to triage specific
    patient requests, partnering with another non-objecting physician, or hiring
    support staff. Physicians who cannot implement such measures have the option to
    change the scope of their practice, an action which does not require
    retraining.

[184]

The College relies on
    the evidence of Dr. William McCauley, a Medical Advisor at the College, who
    states that a change in speciality or sub-specialty is not the only option for
    physicians. He makes the point that physicians may be able to change or narrow
    their scope of practice without engaging in specialist retraining through
    formal residency. He points to the following areas as areas of medicine in
    which physicians are unlikely to encounter requests for referrals for MAiD or
    reproductive health concerns, and which may not require specialty retraining or
    certification: sleep medicine, hair restoration, sport and exercise medicine,
    hernia repair, skin disorders for general practitioners, obesity medicine,
    aviation examinations, travel medicine, and practice as a medical officer of
    health. He also points to other roles in which a physician would be shielded
    from patient requests for referrals, such as administrative medicine or
    surgical assistance.

[185]

In resolving the
    balancing exercise, I find much assistance in the submissions of the intervener,
    Dying with Dignity Canada, which observes that in balancing the salutary
    effects of the Policies against the deleterious effects on objecting physicians,
    it was appropriate for the College and the Divisional Court to conclude that
    patients should not bear the burden of managing the consequences of physicians
    religious objections. It bears noting that the compromise arrived at by the
    College is not optimal for patients, who must accept being referred for MAiD if
    their physician objects to the procedure. As Dying with Dignity Canada notes,
    the burden imposed by the Policies is minimal and is acceptable for some of the
    appellants and for many other physicians. But, as it said:

If a doctor is unwilling to take the less onerous step of
    structuring their practice in a manner that ensures that their personal views
    do not stand in the way of their patients rights to dignity, autonomy, privacy
    and security of the person, then the more onerous requirement of a transfer
    into a new specialty is a reasonable burden for that doctor to bear.

[186]

The Fact Sheet
    identifies options that are clearly acceptable to many objecting physicians.
    Those who do not find them acceptable may be able to find other practice
    structures that will insulate them from participation in actions to which they
    object. If they cannot do so, they will have to seek out other ways in which to
    use their skills, training and commitment to patient care. I do not
    underestimate the individual sacrifices this may require. The Divisional Court
    correctly found, however, that the burden of these sacrifices did not outweigh
    the harm to vulnerable patients that would be caused by any reasonable
    alternative. That conclusion is not undermined by the fresh evidence before
    this court. Even taking the burden imposed on physicians at its most onerous,
    as framed by the appellants, the salutary effects of the Policies still
    outweigh the deleterious effects.

[187]

As the Divisional
    Court observed, the appellants have no common law, proprietary or
    constitutional right to practice medicine. As members of a regulated and
    publicly-funded profession, they are subject to requirements that focus on the
    public interest, rather than their interests. In fact, the fiduciary nature of
    the physician-patient relationship requires physicians to act at all times in
    their patients best interests, and to avoid conflicts between their own
    interests and their patients interests: College of Physicians and Surgeons of
    Ontario,
The Practice Guide
(Toronto: CPSO, September 2007), at pp.
    4-5, 7;
McInerney v. MacDonald
, [1992] 2 S.C.R. 138, at p. 149; and
Norberg
    v. Wynrib
, [1992] 2 S.C.R. 226, at pp. 270-72, 274. The practice of a
    profession devoted to service of the public necessarily gives rise to moral and
    ethical choices. The issues raised in this proceeding present difficult choices
    for religious physicians who object to the Policies, but they do have choices.
    While the solution is not a perfect one for some physicians, such as the individual
    appellants, it is not a perfect one for their patients either. They will lose
    the personal support of their physicians at a time when they are most
    vulnerable. Ordinarily, where a conflict arises between a physicians interest and
    a patients interest, the interest of the patient prevails. The default
    expectation is that the physician is to personally provide their patient with
    all clinically appropriate services or to provide a formal referral. Patients
    expect that their physicians will do so. However, the Policies do not require
    this. They represent a compromise. They strike a reasonable balance between patients
    interests and physicians
Charter
-protected religious freedom. In
    short, they are reasonable limits prescribed by law that are demonstrably
    justified in a free and democratic society.

G.

Conclusion

[188]

For these reasons, I
    would dismiss the appeal. Costs may be addressed by written submissions in the
    event they have not been resolved.

Released: G.R.S.   MAY 15  2019

George R. Strathy
    C.J.O.

I agree. S.E. Pepall
    J.A.

I agree. Fairburn
    J.A.





[1]
Policy Statement #4-16, entitled Medical Assistance in Dying, refers to
    nurse practitioner in place of other health-care professional.



[2]
The Human Rights Policy also contains the following provision: Physicians must
    provide care in an emergency, where it is necessary to prevent imminent harm,
    even where that care conflicts with their conscience or religious beliefs. This
    provision was challenged in the Divisional Court. However, the Divisional Court
    noted that all the individual appellants agreed that they would not object to
    performing an abortion where it was necessary to save a pregnant womans life
    and the appellant organizations agreed most of their members would take the
    same position: para. 218. Thus, the Divisional Court found that there was no
    evidence that the emergency provision would raise a concern even if the
    provision were interpreted to require the provision of treatment to prevent a
    serious deterioration of health short of saving a patients life: para. 218. It
    dismissed the applications in relation to the emergency provision. The
    appellants do not pursue the issue in this court.


