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Constitutional lawyers debate conscience rights

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Attorneys discuss medical physicians' freedom to choose
By Deborah Gyapong

Photo caption: Constitutional lawyer Albertos Polizogopoulos (left) defends physicians' conscience rights in a debate at University of Ottawa's law school Mar. 16. Queen's University senior contract negotiator Ricardo Smalling thinks physicians should not be allowed to exercise conscience rights while providing health-care services. (Deborah Gyapong / CCN)
Legal experts squared off in a debate on physicians’ conscience rights March 16 in a debate hosted by the University of Ottawa’s law school.
Albertos Polizogopoulos, representing five Ontario doctors challenging Ontario College of Physicians and Surgeon policies requiring effective referral on procedures such as abortion and euthanasia, argued for conscience rights. He argued Section 2(a) of the Canadian Charter of Rights and Freedoms provides such protection.
And while the Charter protects the conscience rights of physicians, there is no Charter right to any particular drug or procedure, Polizogopoulos said.
The Carter decision did not “create a right” to euthanasia or assisted suicide, he said. It merely struck down the law against assisted suicide in the Criminal Code.
Queen’s University Senior Contracts Negotiator Ricardo Smalling argued physicians’ conscience rights must be balanced with the rights of patients who are seeking care in their “weakest” moments.
Highlighting the “subjective nature of conscience,” Smalling said eliminating conscientious objection “is the only way to ensure there is a predictable framework that guarantees a patient’s health care.”
Physicians have a right to their religious beliefs but they should know that if abortion or “medical aid in dying” is legal, they “may be required by the state to do these services,” he said.
Both legal experts referred to the Oakes Test as a way of examining whether a limit to a Charter right is “reasonably and demonstrably justified.” The Oakes Test, from the 1986 Supreme Court Case R vs. Oakes, says the limit must be “fair and not arbitrary” and “rationally connected to that objective,” it must limit the impairment as much as possible, and it must be proportional to the objective.
Polizogopoulos said the measures by the College to limit physicians’ conscience rights fail the Oakes Test because there is “no pressing and substantial reason” for the policy.
“[Smalling] cannot point you to one case prior to this policy where somebody’s access to a particular procedure was impeded,” he said.
Smalling, however, argued the College must consider the rights of all the parties that will be affected.
The rights of the physicians are minimally impaired, because he or she “has the right to all their beliefs; they can go to church and manifest their beliefs,” he said. All that’s being asked is “for those hours when you are at work, you don’t manifest them. To me, that’s minimum impairment.”
Polizogopoulos argued the Charter exists to protect people from coercion and being compelled to take a course of action. To illustrate, he said he does not provide family law, criminal law or real estate services, then asked whether he should be forced to practice real estate law.

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