Hearing Update On Trinity Western University v. Nova Scotia Barristers’ Society

Below are my speaking notes for my oral argument delivered today, December 17, 2014, at the Nova Scotia Supreme Court in the case of Trinity Western University v. Nova Scotia Barristers’ Society.

You may watch the delivery at: http://courts.ns.ca/Webcasts/webcasts_archive_trials.htm  under tab December 17, 2014, Morning 1

Here is a picture of TWU’s counsel, Brian Casey and Kevin Sawatsky, along with the counsel of the other Interveners supporting TWU’s position:

Nova Scotia Supreme Court December 17, 2014

Nova Scotia Supreme Court December 17, 2014

 

It has been my privilege be working along side TWU's lead counsel Brian Casey who I worked with over 21 years ago at the same firm in St. John's, Newfoundland

It has been my privilege to be working this week along side TWU’s lead counsel Brian Casey. Brian and I worked at the same firm together in St. John’s, Newfoundland over 21 years ago.

My lord,

Today, I represent Canadian Council of Christian Charities, an umbrella organization of over 3300 Christian charities across Canada.  We are the largest such organization in the country.  We are an Evangelical organization in identity but ecumenical in service.  Our service to our members is to provide information to assist them in carrying their legal and regulatory duties and to ensure they can operate in a favourable legal and regulatory environment.

Thanks

First, I want to thank this court for giving us the opportunity to speak.  It is important in Charter litigation for courts to allow a broad swath of organizations to have their voices heard.  Charter litigation involves fundamental issues, concepts and principles that involve all Canadians.  Indeed religious freedom and equality rights as raised in this matter are of the upmost importance for the wellbeing of all our citizens.  As stated by Justice Rand over 60 years ago and noted in our brief:

“A religious incident reverberates from one end of this country to the other, and there is nothing to which the ‘body politic of the Dominion’ is more sensitive.”[1]

My colleague Mr. Derek Ross and I filed a very detailed brief to the court on the position of CCCC and I will not read that document in detail now but rather I will briefly given an overview of our position in the grand picture of the enterprise we are all engaged in here this week.

Need To See The Big Picture

I want to impress upon the court that it is necessary to step back and scan the larger context of what is going on in this litigation.  Charter litigation by definition is not simply concerned with individual litigants but rather has a much wider reach.  This is not solely about Trinity Western University and its Community Covenant and the NSBS.  Rather there are larger themes at work that will affect Canada and its way of life.

Two Competing Models of Canada

There are two competing models of Canada being proposed in this litigation.  I will first present them in a nutshell and then discuss in greater detail.

  • The first is the Diversity Model as expressed in TWU’s position. It is in harmony with the current understanding of the Charter that allows for differences of absolute truth about marriage to be present at the same time – each having their own space to operate in our society;
  • The second is the Absolutist Model, as expressed in NSBS position. In our brief we also refer to it as Professor William Galston’s term “Civic Totalism.”  It does not allow room for competing absolute positions on marriage to have space on the same real estate.  It is a “winner takes all,” or an “all or nothing” proposition.

I will now outline what TWU’s position, from the perspective of our member organizations point of view and why this case is not simply a case about TWU but a case about the future of Canada

The Diversity Model

The current state of the law is the Diversity Model.  It took us, as a society, centuries of trial and error to arrive at this understanding of how we get along with our neighbours.  Prior to the Reformation there was only one conception of religious truth that was permissible.  The law was highly influence by the Christian ethic and worldview, as understood at that time.  No deviation was permitted.

However, as Chief Justice Dickson noted in the Big M Drug Mart[2] case the Reformation was a watershed moment when emphasis was placed on our individual relationship with God.   Dickson noted, “Attempts to compel belief or practice denied the reality of individual conscience and dishonoured the God that had planted it in His creatures.”[3]

This individualization of religious opinion had socio-economic and political affects and ultimately it influenced our law.  In the words of Dickson, the “emphasis on individual conscience and individual judgment also lies at the heart of our democratic political tradition.” [T]he centrality of the rights associated with freedom of individual conscience both to basic beliefs about human worth and dignity and to a free and democratic political system … that in my view underlies their designation in the Canadian Charter of Rights and Freedoms as “fundamental”. They are the sine qua non of the political tradition underlying the Charter.”[4]

There was a time when the sovereign changed religion the population was expected to follow or face persecution.  When Henry VIII decided he would be the head of the English church Roman Catholics suffered.  Later his daughter Mary came on the throne, as a Catholic, and had Protestants persecuted.  Then when her half-sister Elizabeth was crowned she had the Catholics killed – and so it went.

Over time we came to recognize that absolute view on fundamental questions such as religion had to be accommodated so that we could all live together on the same real estate without killing or dominating each other.  That meant we, as a society, had to live with a certain amount of dissonance.  What was offensive to some would have to be permitted on the basis of an attitude of reciprocity.  That is to say, an attitude that recognized, “I will allow you to believe and practise what I find offensive because I know what I believe and practise you find offensive.”  We reciprocate respect and tolerance.

As noted in our brief, in 1760 the British crown gave religious freedom to its newly conquered French population of Quebec to practice the Roman Catholic faith.  It was the first time that the Protestant British Empire gave such liberality.  The guarantee of 1760 also found its way into the Quebec Act and eventually became the basis of our religious freedom as described by Justice Rand in the Jehovah’s Witness cases of the 1940s-50s as noted in our brief.

After Confederation another political reality was evident in the new country of Canada – the settlement of the prairies.  John A. McDonald knew he had to build a railway to Vancouver and settle the West before the Americans.  Rather than rely solely on immigration from Britain he sought out the persecuted religious minorities of continental Europe.  One of those groups was the Mennonites of Russia who faced untold hardships under the Tzar.  The Mennonites agreed to come under the conditions their religious practise would be respected.  Two of such practises were pacifism and their own religious school system.

As noted in our brief even in time of war Canada honored its commitments to the Mennonites and exempted them from having to bear arms in both WWI and WWII.  For Canada has long understood the integrity of promises made promises kept.

It was based on our long historical experience of different religious communities and of protections in the Charter that in 2001 the Supreme Court in stated,

TWU is not for everybody; it is designed to address the needs of people who share a number of religious convictions. That said, the admissions policy of TWU alone is not in itself sufficient to establish discrimination as it is understood in our s. 15 jurisprudence. It is important to note that this is a private institution that is exempted, in part, from the British Columbia human rights legislation and to which the Charter does not apply. To state that the voluntary adoption of a code of conduct based on a person’s own religious beliefs, in a private institution, is sufficient to engage s. 15 would be inconsistent with freedom of conscience and religion, which co-exist with the right to equality.[5]

 

It was in keeping with the Court’s understanding that Religious Freedom is jealously guarded by our jurisprudence that in 2004 the Court allowed the exemptions to Ministers of Religion from having to perform marriage against their conscience.  This was not on some legal whim – rather it comes from a long historical truth of Canada – we make room for differences of opinion and practise on religious absolutes.

The characteristics of the Diversity Model include:

  • A recognition of religion and religious communities are involved in nation building and making this country a better place – they are permitted to control their own internal affairs and regulation;
  • Differences on fundamental moral positions are to be accepted and celebrated;
  • A willingness to accept dissonance between views on fundamental questions such as marriage.
  • A recognition that we have to get along because we occupy the same real estate.

The Absolutist Model

The second is the Absolutist Model.  This, I suggest, is the net effect of the position of the NSBS.  This Model has very little appreciation for the long historical position freedom of conscience and religion has played in our free and democratic society.  NSBS simply does not like or agree with TWU’s position on marriage and is demanding TWU exempt law students from signing the Community Covenant.  Therefore, it rejects the right of religious communities to have autonomy in their internal affairs regarding moral beliefs and identity.  [Brief – p. 16- Civic totalism.]

The NSBS argues that because TWU is seeking public approval it must follow the public guidelines and its religious beliefs and practises must yield to the equality interests.  This position is problematic on a number of fronts:

 

First, it is not our history.  We have always allowed exemptions to religious communities from generally applicable law, we have outlined in our brief just a sampling of special exemptions given to religion in our legal and regulatory structure.  We have historically understood that the religious freedom of these communities has inherent value – religious communities across this country are involved in numerous pursuits of the public good from running soup kitchens to radio stations;

Second, our Charter mandates that our law be interpreted with respect to our multi-cultural diversity.  Multiculturalism recognizes that there will be dissonance on fundamental understandings of what it means to be human, and sexuality is arguably one of the most important fundamental understandings;

Third, the Supreme Court of Canada recognized this history and understood our law allows dissonance.  That is why in the TWU case in 2001 it said, “TWU is not for everyone….”  And further in 2004 it made an exemption for Ministers of Religion in the Same Sex Marriage Reference case.  Ministers of Religion perform marriages – their act of solemnizing marriage is recognized by the state.  In fact, they are agents of the state when they marry.

In the sense that what they do receives state recognition it is no different, in principle, from what TWU and all the other Christian universities do when they issue state sanctioned diplomas.  The same critique levelled against TWU can also be applied to those ministers of religion who refuse to marry same-sex couples.  However, the Supreme Court accepted this because it is in harmony with our historical treatment of religious belief and practise and recognition of diversity of multicultural groups is part of our nation-building exercise even though it creates dissonance.  Such dissonance on these issues is to be expected in a liberal democratic society.

 

The Absolutist Model as represented by the NSBS:

  • Seeks to remove all dissonance from the interaction of sexual orientation and religious freedom.
  • Seeks a Canada where equality rights trump religious freedom.
  • It is a position that refuses to accept the long held rights of religious communities to define for themselves who can be a member based on its religious beliefs.
  • Its decision under review in this case effectively moves us from the position that “TWU is not for everyone” to “TWU is not for anyone”.

 

To argue that it is only affecting the right of religious communities when they come into the public square or when they are engaged in public activities is to miss the point of our constitutional protection given to religious communities since 1760.

The very nature of religious belief and practise is public and has public effects.  You cannot bifurcate religion into a private hole and a public hole – religion seeps into every aspect of the individual – it is why our jurisprudence is saturated with religious accommodation cases.  From the Sikh student in Montreal wearing the kirpan to school to the Sears Canada employee in Kingston needing her Saturday Sabbath off – religion is a public endeavour for the individual, the religious institution, and community by definition.

In 2005 Parliament recognized that a number accommodations would have to be made to protect the public religious expression of marriage:

  • The preamble of the federal Civil Marriage Act states that nothing in the Act affects the guarantee of religious freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs; and it further states that it is not against the public interest to hold and publicly express diverse views on marriage.[6]
  • Section 149.1 (6)(21) of the Income Tax Act[7] was added to ensure that a registered charity with a stated purpose of advancing religion would not be penalized because it exercises its religious freedom in relation to marriage between persons of the same sex.

Because Parliament anticipated arguments would be forthcoming about the registered charitable status of religious communities that believed, practised, and taught marriage as being between one man and one woman the Income Tax Act was amended.

Why is this permitted?  Why did the Court allow dissonance with the Ministers of Religion?  Why would Parliament in 2005 allow it to be said that it is in the public interest to express differences on the definition of marriage?  Why would the Court allow TWU the freedom to have its education department in 2001?

Surely, if the claims of NSBS were followed to their logical conclusion then there would be no differences permitted.  No exceptions would be given to Christian universities across Canada who belief and practise as TWU does.  It would not be acceptable for Christian colleges and universities to give any state recognized diplomas.  The model of Canada that logically and ultimately flows from the NSBS position would mean that religious colleges and universities would only be permitted to conduct strictly religious studies and not any so called “secular” pursuits.

The fact that TWU also gives diplomas for Bachelor degrees in English, history, nursing and so forth would also be in jeopardy if NSBS argument prevails.

Two models of Canada are at stake in this litigation:

One, the Diversity Model, that recognizes the multicultural nature of Canada where differences on marriage are tolerated on the basis of an attitude of reciprocity and in keeping with our cultural and legal history that recognizes the importance of religious freedom as being a “prototypical”[8] freedom that “lies at the heart of our democratic political tradition.”[9]

The other, the Absolutist Model, or Civic Totalism, demands an absolutist position, rejecting reciprocity, with no room for dissonance on the practise of marriage.  It is a position, we submit, that will have a devastating effect on religious charities across this country and it is not in keeping with our cultural and legal history, nor with the current state of the law.  Further, it denies the historical importance of religious freedom – relegating members of the religious community with only the right to believe but no right to put such beliefs into practise.

Canadian Council of Christian Charities recommend to the court that we maintain the Diversity Model.

Unless there is any further questions this is the end of my remarks.

Thank-you.

[1] Saumur v. City of Quebec, [1953] 2 S.C.R. 299 at 329 [“Saumur”], CCCC’s Book of Authorities [“CCCC Authorities”], Tab 1.

[2] R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at para. 118. Joint Book of Authorities [“JBOA”], Tab 14.

[3] At para. 120.

[4] At para. 122.

[5] Trinity Western University v. BC College of Teachers, [2001] S.C.J. No. 32, at para. 25 [“Trinity Western”], JBOA, Tab 26.

[6] Civil Marriage Act, S.C. 2005, c. 33 at preamble, ss. 3, 3.1.

[7] Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s. 149.1(6.1).

[8] R. v. Big M Drug Mart Ltd., at para. 123.

[9] R. v. Big M Drug Mart Ltd., at para. 122.

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Thoughts on Hearing Update On Trinity Western University v. Nova Scotia Barristers’ Society

  1. Michael Packer

    Barry, thank you for circulating this well thought out presentation. Were any questions asked of you? How were the other religious submissions received by the Court? Michael Packer

    Reply
    1. Barry W. BusseyBarry W. Bussey Post author

      Hi Michael,

      There were no questions ask however comments were made on the nature of the concept of “secular” – Justice Campbell noted philosopher Charles Taylor’s work, “A Secular Age,” to point out that there are at least three different conceptions of “secular.” The fact that Justice Campbell read Charles Taylor is very significant – he is obviously well read. Justice Campbell did ask for clarification about the idea that religion has been accommodated in Canadian law. I shared with him that the current state of the law is, for the most part, accommodating to religion but there are many who want to limit religious expression. In many ways that is at the core of this case – members of the legal profession do not appreciate the religious belief of TWU concerning marriage and are demanding TWU change. This despite the fact that TWU’s view and practise is constitutionally protected. The opposition wants the law changed to remove that protection.

      I was very pleased with how well the Court received the other submissions. He was very balance and engaged with the arguments seeking to understand the respective positions. I came away feeling confident that our points were heard and appreciated.

      Reply

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