Originally published in Policy Options, May 2018
by Brian Bird
The year 2017 marks the 150th anniversary since Confederation and the 35th anniversary of the Canadian Charter of Rights and Freedoms. By virtue of a court case in Ontario that might go all the way up to the Supreme Court of Canada, 2017 may also be the year when freedom of conscience — until now a dormant Charter freedom — is brought to life.
In June, Ontario’s Divisional Court heard arguments in a case that challenges a policy in Ontario obliging physicians to provide an effective referral if they conscientiously object to performing a medical procedure. An effective referral means that the objecting physician must promptly direct the patient to a physician who will perform the procedure. In May, two of the lawyers representing the side that is challenging the policy outlined their position in Policy Options. In essence, they argue that the policy unduly infringes the freedom of conscience and religion of physicians who refuse on the basis of those Charter grounds to participate in medical procedures.
Setting aside for the moment the question of what is the just outcome in this case, I write to express my hope that the Divisional Court will grapple in its forthcoming decision with two Charter questions that deserve our attention: what does freedom of conscience protect, and why do we protect it?
Even though it is the first freedom listed in the Charter, freedom of conscience has rarely been considered by Canadian courts or legal scholars. Part of the explanation is in the text of the Charter: in one clause, section 2(a) of the Charter protects “freedom of conscience and religion.” Religious freedom has enjoyed extensive legal attention since the Charter arrived in 1982. Freedom of conscience, meanwhile, has been forgotten.
The only Canadian court ruling that has dealt with freedom of conscience in isolation from religious freedom concerned a request by Jack Maurice, an inmate, for vegetarian meals while in prison. Corrections Canada granted his initial request, made on the basis of his Hare Krishna faith. He later renounced his faith but continued to request vegetarian meals, citing a belief that a nonvegetarian diet is “morally reprehensible and poisonous to society as a whole.” Corrections Canada stopped the vegetarian meals. The judge ruled for Maurice on the basis that freedom of conscience protects the freedom of persons to manifest their moral commitments.
Some might argue, given the text of the Charter, that freedom of conscience protects only religious conscience. This interpretation is reinforced by the fact that, when freedom of conscience makes headlines, advocates are often religious persons who arrived at their moral convictions through their religious formation. All the physicians named in the Ontario litigation are Christians. This fact may tempt the Divisional Court to decide the case on the basis of freedom of religion, without reference to freedom of conscience. I hope that the Court resists this temptation and seizes the opportunity to disentangle these distinct Charter guarantees.
Given the instinct to speak of conscience mainly in religious terms, it may surprise many that the first draft of the Charter — authored by then minister of justice Pierre Trudeau in 1968 — recommended including freedom of conscience, to protect nonreligious persons. These persons, Trudeau thought, did not benefit from freedom of religion. He appears to have thought that freedom of conscience would protect their moral convictions.
In my view, conscience largely transcends religion and irreligion. Conscience is about living in alignment with our moral judgments, regardless of where they come from. Thomas Aquinas defined conscience as the application of (moral) knowledge to activity. Freedom of conscience thus protects physicians, whether they are atheist, agnostic or religious, who refuse to perform an abortion because in their view it is immoral. They are protected by freedom of conscience if their refusal is based on the same moral judgment.
What, then, is left for freedom of religion? This freedom protects faith-based beliefs and practices. The Christian who believes that Jesus Christ is the son of God does not believe it on the basis of a moral obligation. It is a matter of faith. Likewise, the Catholic does not wear a crucifix in order to follow her conscience. It is an external manifestation of a faith-based belief. The same principle applies to religious worship, liturgy and rituals. These activities usually represent articles of faith, not moral convictions.
If moral freedom is what freedom of conscience protects, why we protect this freedom boils down to the fact that conscience touches on core moral commitments that sustain our identity and integrity — who I am and what I stand for. Professionals faced with a crisis of conscience have two unattractive choices: resign or violate these commitments. If they choose the latter, they commit a harmful act of self-betrayal. The concept of “moral injury” has been studied in the context of military personnel who return home after committing acts on the battlefield that violated their moral compass. Moral injury can also occur in less harrowing circumstances. A physician in Ontario, Natalia Novosedlik, revealed in an interview that she violated her conscience by making an effective referral — a decision that, after the fact, caused a “really internally divisive experience” for her.
Some will say that a person who is mired in a crisis of conscience (like Novosedlik) should resign. Some might even say that she should not have been allowed to enter medical school. These opinions are side effects of our failure as a society to understand freedom of conscience and the values it safeguards: identity and integrity, both of which engage the broader value of human dignity. This failing increases the chance of a fundamental Charter freedom and basic human right being curtailed more than is necessary. Given what is at stake, we should not place fellow citizens in a crisis of conscience unless there is a compelling justification for doing so.
Returning to the litigation in Ontario, administrative protocols can be created to avoid the thorny issue of effective referrals, while still maintaining timely access to medical procedures. Last year Alberta adopted a centralized “care coordination service” for physician-assisted death that avoided imposing effective referrals. So far, the service has received positive reviews.
Balancing physicians’ freedom of conscience with patients’ access to medical services is a delicate task. But that balance will certainly not be struck if, when it comes to freedom of conscience, we do not know what we are talking about or why it matters.