A Test for Freedom of Conscience under the Canadian Charter of Rights and Freedoms: Regulating and Litigating Conscientious Refusals in Health Care

Conscientious refusal to provide insured health care services is a significant point of controversy in Canada, especially in reproductive medicine and end-of-life care. Some provincial and territorial legislatures have developed legislation or regulations, and some professional regulatory bodies have developed policies or guidelines, to better reconcile tensions between health care professionals’ conscience and patients’ access to health care services. As other groups attempt to draft standards and as challenges to existing standards head to court, the fact that the meaning of “freedom of conscience” under the Canadian Charter of Rights and Freedoms is not yet settled will become ever more problematic. In this paper, we review the case law and legislative history relating to freedom of conscience. Having shown that the nature and scope of the freedom of conscience provision cannot be settled by either review, we turn to philosophy for insights with respect to the contemporary purpose of protecting freedom of conscience. On this basis, we offer a substantive test for freedom of conscience under the Charter. We do so for two reasons. First, we seek to assist those responsible for regulating the conduct of health care professionals in designing and implementing laws and policies that protect and promote the health needs and interests of patients without unjustifiably limiting the Charter conscience rights of health care professionals. Second, we seek to inform the analysis of future freedom of conscience Charter cases in response to the decriminalization of medical assistance in dying and the licensing of the drugs used for medical abortion