We’re excited to do something a little bit different in this blog post. Today we’re talking to Dr. Barry W. Bussey about freedom of religion and conscience. These two matters have been some of the most important to Barry throughout his legal career, including during his 10-year tenure at CCCC, which he completed in November 2021. We wanted to hear his thoughts and reflections about them as he leaves CCCC.  

Many of our readers will know Barry well. But for those who don’t, Barry hails from Newfoundland, and among many other things, has served as a pastor, worked as a lawyer in private practice, ran for political office, directed public affairs for a church denomination, worked in Washington, D.C. representing the International Religious Liberty Association, and served as CCCC Director of Legal Affairs. In 2019 Barry earned his Ph.D. in law from Leiden University. He has co-edited or edited four books on law and religion and has published a growing number of law review articles.

Our Interview

Deina: Looking at your work over the course of your 10 years at CCCC your focus on religious freedom is very clear. And it seems there are two key elements of religious freedom that have captured your attention: religion as a “prototypical freedom” and the relationship between freedom of religion and freedom of conscience.

Can you explain what you mean by religion as a “prototypical freedom”?

Barry: Religious freedom is foundational: it sets the stage for the other freedoms we enjoy in liberal democracies, like freedom of speech, freedom of assembly, or freedom of association. Looking back specifically to the religious wars of the sixteenth and seventeenth centuries, we see they ultimately led to the realization that belief could not be forced or compelled without bloody consequences. This, in turn, contributed to a political toleration which recognized that the state is not supreme; individual conscience or faith had to be accommodated for the greater good. In this sense, freedom of religion “blazed the path” that led to the development of other human rights. Logically, this also means that if we neglect freedom of religion and conscience, we undermine all other civil liberties.

“…conscience represents an even deeper, inner principle which is accessible to all, regardless of their faith or lack of faith.”

Deina: Speaking of other civil liberties, can you tell us how freedom of religion and conscience interact? And why that matters? What difference does it make?

Barry: The two concepts are often used interchangeably, but in my view, conscience underlies religion, in the sense that conscience represents an even deeper, inner principle which is accessible to all, regardless of their faith or lack of faith. It is, at its heart, the individual’s understanding of the truth and his responsibility to that truth. I would say that, while not all conscience claims may be religious in nature, any appeal to religious freedom must be grounded upon freedom of conscience. This is because religion may be seen as a public or communal manifestation of private, conscientious convictions regarding morality and one’s individual obligation to God.

Deina: What is it about these two topics – religious freedom and conscience – that have attracted your attention?

Barry: From an early age growing up in Newfoundland I was aware of the differences of religion. I lived in an area that was overwhelmingly Anglican, as was my family. But occasionally an ‘outlier’ from the Pentecostal, Catholic, or Salvation Army communities would enter my world. This happened when I went to school and saw that not everyone shared my faith. That fascinated me and still does. Why so many different beliefs or doctrines? Then later, my own family changed denominations and suddenly I was among the ‘outliers.’ Again, it was a time for evaluation – what motivates people to stand out and be different?

“Would I be so committed to my faith, my integrity that I would lay all things down to remain true?”

Later I became interested in conscientious objectors during war. I went on a research project interviewing some twenty-five to thirty men who refused to bear arms during World War II. I tried to live in their world at the time as they shared with me their experiences. These experiences included being ostracized from family and friends, loss of employment (no one wanted a “coward” in their employ), being put in public work camps around Canada at one-half the pay given to the regular conscripts. Some described their fellow conscientious objectors having nervous breakdowns out of anxiety for their spouses and children, who were left on the farm to fend for themselves. Yet, despite it all, they had no regrets that they had followed their consciences. Hearing their stories made an impact on me. Would I be so committed to my faith, my integrity that I would lay all things down to remain true? Serious questions. They remain relevant today.

Deina: What do you see as the most significant challenge to these freedoms?

Barry: In the last ten years we have seen the culmination of various trends which began after the last World War and which are having a dramatic impact on conscience. Most people seem to be unaware of the gigantic legal revolution against the accommodation of religion. It is, in my view, the settled opinion of most academics, the media, political elites and, unfortunately, the legal profession and judiciary that conscience and religion are no longer worthy of accommodation. That is a sea change from what we once understood in constitutional liberal democracies. We once held the view that we are to accommodate religious and conscientious belief and practices, as I mentioned earlier. We were willing to be inconvenienced to allow a person to maintain their integrity. That is now gone.

Deina: Why do you think that is?

Barry: I think it is due to a very cynical conception of the world as a matter of power. He who has the power gets to run his own show. We have lost the concepts of virtue. The cardinal virtues, the Greeks told us, were prudence, justice, fortitude and temperance. The Christian church said, ‘yes, those are good, but we also need faith, hope and love.’

Immanuel Kant, the German philosopher, said, “Virtue is the moral strength of the will in obeying the dictates of duty.” Historically, we had a cultural understanding of our duty to our God, to our family, and to our community. The Greeks told us that we simply cannot perform a function or a skill (the “techne”) without knowing the purpose (“telos”) of why we are doing it. We have lost that second part of knowing the purpose. We are only interested in the function: getting things done, satisfying the senses, without considering the bigger meaning of things – in part, I suspect, because doing so means recognizing not only a higher purpose but a Higher Power.

The culmination of this process in the legal profession came with the TWU law school cases. It was totally disheartening to see my own legal profession be so oblivious of their own history that they could not see the “telos” in that debate. There was no understanding of TWU’s duty to the moral virtues for which it was created in the first place. They could only see the function of a law school (educating lawyers) and not the purpose of producing virtuous lawyers who understood and carried out their duty. Conscience, religion, duty, all was rejected in the pursuit of power. Power is now the currency within which we operate, and quite frankly we see it more and more everyday.

“It will be important to establish a respectful and informed framework to ensure we’re not having conversations about power, but about purpose.”

Deina: Looking at some of those reasons, what do you think should be done in response?

Barry: There are a number of things that I think should be done to effectively respond to these underlying issues. One is to advocate, educate, and potentially litigate as necessary in order to defend the equal dignity and worth of all Canadians. That could include academic work, like my own past book projects (The Inherence of Human Dignity (2021), The Status of Religion and the Public Benefit in Charity Law (2020), Religion, Liberty and the Jurisdictional Limits of Law (2017)), editorials and other columns, seminars; developing and sharing resources to equip Canadians to understand and protect their rights and freedoms and to engage in meaningful conversations with political leaders. It will be important to establish a respectful and informed framework to ensure we’re not having conversations about power, but about purpose.

Deina: Thanks, Barry, for taking the time to talk with us today! We appreciate your insight into the interplay between religion and conscience, and for the very important reminder to always keep the end in mind; of knowing the purpose that underlies the function.

Ways to Engage

Wondering how you can engage in some of the issues raised by Barry? Check out our recent blog post, Advocating for Legal/Policy Changes, that sets out a framework to help you engage wisely.

The post Freedom of Religion & Conscience: What’s the Connection? appeared first on CCCC Blogs.

On Tuesday, December 7, Bill C-4, which criminalizes conversion therapy, passed the Senate in a single motion. It had already passed the House in a single motion on December 1.

What is Bill C-4?

Bill C-4 adds a new offence to the Criminal Code that prohibits conversion therapy. What is conversion therapy? Bill C-4 defines conversion therapy as a “practice, treatment or service designed to”

• Change a person’s sexual orientation to heterosexual;
• Change a person’s gender identity to cisgender;
• Change a person’s gender expression so that it conforms to the sex assigned to the person at birth;
• Repress or reduce non-heterosexual attraction or sexual behaviour;
• Repress a person’s non-cisgender gender identity; or
• Repress or reduce a person’s gender expression that does not conform to the sex assigned to the person at birth

When is it effective?

Now that Bill C-4 has passed both the House and the Senate, it needs Royal Assent. Royal Assent is approval by the Governor General.

It will be effective 30 days after it receives Royal Assent.

Why does it matter?

Any time the government introduces a new crime, it is important for Canadians to be aware of what behaviour or conduct is prohibited.

In this case, insofar as Bill C-4 eliminates abusive, involuntary or coercive practices from our communities, that is a good thing.

The concern – raised by CCCC and many others – has been that the definition of conversion therapy was too broad, and that clarifying amendments were needed in order to avoid capturing legitimate expression and activities. Neither the House nor the Senate amended the Bill.

Through the course of debate and committee hearings on Bill C-6 (Bill C-4’s predecessor), Ministers and Members of Parliament gave repeated assurances that the bill’s aim was coercive and systematic efforts as well as forced and coordinated efforts, not conversations about sexuality. The Minister also noted that practices, treatments and services designed to achieve objectives such as abstinence or to address sexual addictions are clearly not captured by the definition.

While clarifying amendments would have been our preferred path forward, we trust that these statements will guide and appropriately restrain the scope of the prohibition.

What’s next?

We recognize that there remains a lot of uncertainty in this bill. We’re interested in your concerns or questions to help shape resources and guidance as we move forward. We invite members to share here in The Green, or you can send us an email.

To get timely updates, subscribe to Noteworthy.

The post Bill C4, Conversion Therapy Ban Passes the Senate appeared first on CCCC Blogs.

What is Bill C-4?

Bill C-4 adds a new offence to the Criminal Code that prohibits conversion therapy. What is conversion therapy? Bill C-4 defines conversion therapy as a “practice, treatment or service designed to”

• Change a person’s sexual orientation to heterosexual;
• Change a person’s gender identity to cisgender;
• Change a person’s gender expression so that it conforms to the sex assigned to the person at birth;
• Repress or reduce non-heterosexual attraction or sexual behaviour;
• Repress a person’s non-cisgender gender identity; or
• Repress or reduce a person’s gender expression that does not conform to the sex assigned to the person at birth

Why does it matter?

Any time the government introduces a new crime, it is important for Canadians to be aware of what behaviour or conduct is prohibited.

In this case, insofar as Bill C-4 eliminates abusive, involuntary or coercive practices from our communities, that is a good thing.

However, in its current form there is a real concern about the broad definition of conversion therapy. The concern is that, without clarifying amendments, the definition could readily criminalize legitimate expression and activities.

What is the status of Bill C-4 now?

As of Friday, December 3, Bill C-4 is at the Senate. It has passed first reading, and will be dealt with “two days hence”… That means next week, Tuesday, December 7.

When the Senate looks at the bill, it will be at second reading. Second reading is usually when there is debate about the bill and when the bill is referred to a committee for further study, to hear from witnesses, and to receive public input. It is possible that the Senate will follow the House’s lead and pass the bill in a single sitting.

What’s happening?

CCCC and many others raised similar concerns in the last Parliamentary Session when a conversion therapy ban was also introduced (Bill C-6). CCCC made submissions to the House Justice Committee and is actively working to make our concerns known to Senators.

The Senate will need to consider whether the definition of conversion therapy in the Bill is sufficiently clear as to what conduct will be criminalized. The concern is that the definition in its current form isn’t clear, and could be interpreted to include religious instruction concerning human sexuality, parental guidance, and support for people who wish to order their sexual lives in accordance with their religious conscience.

If you’re looking for ways to express concern, you can check out some of these resources:

• CCCC submissions to the House Justice Committee on Bill C-6, as mentioned above
• CCCC, Christian Legal Fellowship (CLF) and the Evangelical Fellowship of Canada (EFC) document Church Guidance: Conversion Therapy which sets out both areas of agreement with conversion therapy bans and areas of concern
• EFC’s Sample Letter for Concerned Citizens in pdf or docx format
• You can visit the Senate site to find a Senator from your region

Most importantly, please pray for wisdom for our political leaders, for wisdom and grace for our religious leaders, and for the love and hope of Christ to be known in our communities.

What’s next?

We will follow the development of the bill along with any amendments. If the bill is referred to a committee, there will be opportunity for public input and we’ll be sure to update you.

We recognize that there is a lot of uncertainty in this bill. We’re committed to supporting you with resources, a space to ask questions, and guidance for moving forward and are actively working on these initiatives.

To get timely updates, we invite you to subscribe to Noteworthy. You can sign up with one click on the right side of this page!

The post Conversion Therapy Ban Passes the House, Now at Senate appeared first on CCCC Blogs.

No doubt you’re asking, “what is the attestation this year?” and “can we in good conscience apply?” As with past CSJ applications, we fully recognize that charity leaders must make up their own minds as to whether they are comfortable with the terms and conditions (the strings) attached to funding. To help you decide, we’ll look at the requirements for 2020 as set out in the Applicant Guide and the Articles of Agreement.

What’s the Same?

The Attestation is word for word the same as last year. It remains “any funding under the Canada Summer Jobs program will not be used to undermine or restrict the exercise of rights legally protected in Canada.”

The 15-point eligibility criteria also remain the same. The 15 requirements include the obvious items:

1. Meet the deadline
2. Check the attestation
3. Complete the application

…some seemingly redundant items:

4. Employer is eligible
5. Project is eligible

…job timing:

6. Duration of 6-16 consecutive weeks
7. Full time hours (30-40/week)

…money considerations:

8. Identify other sources of funding
9. Salary respects minimum wage requirements
10. Organization declares any money owed to the government

…plans and policies:

11. Health and safety – demonstrate measures have been implemented that relate to the type of work environment, job type, and job activities
12. Hiring practices and work environment – hiring policies and work environment policies to ensure no harassment or discrimination
13. Supervision – describe the plan
14. Mentoring – describe the plan

…and lastly:

15. How your organization has done in the past.

Here the government will review “all files associated with your organization” for “documented evidence” that would make the 2020 application ineligible. What would that documentation be? It includes – but is not limited to – financial irregularities, health and safety concerns or past project results. This was new in 2019 and has been carried over into 2020.

The objectives to provide quality work experiences for youth, respond to local and national priorities to improve access to the labour market for youth who face unique barriers, and provide skills-development opportunities to youth, all remain the same.

There is a lot of emphasis on safe, healthy work environments free of harassment and discrimination. It should be self-evident that faith-based organizations ought to be promoting and ensuring safety and health, and striving for workplaces free of harassment and discrimination. But as we know, the term discrimination is often used in an indiscriminate way. So let’s take a look at what’s new for 2020.

What’s Different?

There are a few changes that we need to note.

First, the aim.

In 2019 the aim was to “ensure that youth job opportunities funded by the program take place in an environment that respects the rights of all Canadians.” In 2020 the aim is to “ensure that youth job opportunities funded by the program take place in safe, inclusive and healthy work environments free from harassment and discrimination.”

Second, the description of what makes a quality job placement.

In 2019 the starting point for quality job placements was a safe, inclusive and healthy work environment, along with other specific characteristics:

• Paying above minimum wage
• Retaining the youth as an employee beyond the CSJ period
• Providing short and long-term support for success – supervision & mentoring plans
• Provide skills-development opportunities
• A safe, inclusive work environment as demonstrated by detailed health and safety practices

In 2020, all of these factors still apply with two small changes. First, the starting point is broader; it is a safe, inclusive and healthy work environment free from harassment and discrimination. Second, health and safety practices are separate and distinct from work environment policies and practices. Employers need to have implemented measures to provide a work environment free from harassment and discrimination, including non-discriminatory hiring practices.

Third, there is a heightened emphasis on hiring policies in the eligibility requirements.

In 2019, employers had to demonstrate that hiring practices and work environments were free of harassment and discrimination by implementing measures such as raising awareness and prevention activities.

In 2020, employers must demonstrate that they have implemented measures to ensure their hiring practices and work environment are free of harassment and discrimination.

This is a subtle shift in language, and perhaps it is nothing more than a refinement of the Guide. More on this below.

Fourth, the employer information required.

In 2019, organizations had to describe measures to ensure hiring practices and a work environment were free of harassment and discrimination.

In 2020, organizations must identify and describe the work environment policies and practices that have been implemented. It is mandatory to provide such an environment, and organizations must identify and describe the following:

• Hiring policies & practices
• Harassment policies & practices
• Conflict resolution policies
• Employee and/or management training
• Other: any additional practices that demonstrate concrete efforts to create an inclusive work environment.

Here, applicants are reminded that the project cannot consist of projects or activities that

• restrict access to programs or, services, or employment, or otherwise discriminate, contrary to applicable laws, on the basis of prohibited grounds, including sex, genetic characteristics, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation, or gender identity or expression
• advocate intolerance, discrimination and/or prejudice, or
• actively work to undermine or restrict a woman’s access to sexual and reproductive health services.

These restrictions as well as the definition of “project”,[1] “advocate”,[2] and “undermine or restrict”[3] remain the same as last year. They have been moved from the description of project eligibility in 2019 to the employer information section in 2020.

Do the changes mean anything?

Well, it depends.

It depends on how the hiring policies are examined. It depends on whether the right of organizations to hire based on shared religious beliefs is respected (the attestation prohibits only projects that discriminate “contrary to applicable laws”). It depends on whether the government adheres to its duty of state neutrality in how it evaluates applications.

As in 2019 we find ourselves in the position of uncertainty as to how the government will interpret its 2020 requirements. We can be certain that hiring policies will be scrutinized to a much greater degree. But how that translates into approvals or rejections is unclear.

We can see that hiring policies are more important in the application process this year. And we know that last year, organizations that were asked to provide additional documentation about these policies were often not approved. It is possible that we may not see much change from last year, but it would also not come as a surprise to see more organizations rejected on the basis of hiring policies that, though perfectly legal and falling within human rights code protections for faith-based organizations, are unpalatable to our governing elites.

Where does CCCC land?

In 2019, CCCC encouraged all Christian charities to apply for funding since applicants were no longer required to attest to their agreement with government ideology on abortion and sexual issues. As noted at the outset, we respect the view that merely applying for CSJ funding is to acquiesce to the government’s position on “sexual and reproductive health services” including abortion. And each charity must reach its own conclusion.

However, we at CCCC arrive at the same conclusion as last year. Namely, that the phrase “undermining, or restricting” does not deny the right of religious organisations to speak or teach or live their religious views in opposition to the government’s worldview, as this is not “contrary to applicable laws.” Nor is it contrary to applicable laws for faith-based organizations to hire in accordance to their faith. Therefore, we would again encourage Christian charities to apply for funding in 2020.

[1] Project means the “hiring, administration of, job activities, and organization’s activities as described in the Application Agreement.”

[2] Advocate means “to promote, foster, or actively support intolerance, discrimination, and/or prejudice.”

[3] Undermine or restrict means “to weaken or limit a woman’s ability to access sexual and reproductive health services. The Government of Canada defines sexual and reproductive health services as including comprehensive sexuality education, family planning, prevention and response to sexual and gender-based violence, safe and legal abortion, and post-abortion care.”

The post Canada Summer Jobs 2020 – Applications Open! appeared first on CCCC Blogs.

The federal government is asking for your feedback about expanding access to “medical assistance in dying” (MAID), a euphemism for euthanasia or assisted suicide. Whichever term you choose, we are talking about the intentional killing of human beings, a matter of serious concern for the Christian.

Why now? What has prompted the online questionnaire? According to the website there are two main drivers: first, the Truchon v Attorney General of Canada[1]decision from September 2019; and second, the upcoming MAID review this summer.

In Truchon the Quebec Superior Court heard a constitutional challenge to the requirement that death be reasonably foreseeable to be eligible for MAID. That is only one of several criteria a patient must meet in order to be eligible. Currently, the patient must:

• Be at least 18 years old
• Have a grievous and irremediable medical condition (further defined as summarized below)
• Have made a voluntary request
• Give informed consent, even after being told about alternative options, including palliative care

It is the further definition of a “grievous and irremediable” condition that requires reasonable foreseeability of death. In addition, the patient must:

• Have a serious and incurable illness, disease or disability
• Be in an advanced state of irreversible decline in capability
• Experience, as a result of the illness, disease or disability, enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions he or she deems acceptable

The court declared reasonable foreseeability of death an unconstitutional requirement.

Although the court claimed to “fully understand” warnings about the danger related to social normalization of MAID and the societal perception of the value of people with physical or intellectual disabilities, it  concluded that “we cannot, in the name of protecting certain persons from themselves or of socially affirming the value of life, deny medical assistance in dying” to entire groups of people.[2]

The court also held that the negative effects of requiring reasonable foreseeability of death were “by far greater than the expected benefits to society as a whole” if a foreseeable death was not required. That requirement was held to violate the Charter, principles of self-determination, dignity and autonomy. To hold otherwise would be “forcing” people to “continue a life that no longer has any meaning.”[3]

I pause here to note that even as the Quebec court held that “forcing” people to live offends the Charter, an Ontario court last year held that forcing physicians to participate by referring patients for MAID does not offend the Charter.[4] This is a dangerous convergence: expanding state-authorized euthanasia while at the same time restricting conscientious objection.

Instead of appealing the decision (which it could have done), the federal government chose to let the decision stand. The ruling, and the elimination of reasonable foreseeability, will come into effect on March 11, 2020. As noted on the questionnaire website, “while this ruling only applies in the province of Quebec, the Government of Canada has accepted the ruling and has committed to changing the MAID law for the whole country.”

In what I think is a key phrase about the context and objectives of the questionnaire, the site explains: “updating Canada’s MAID law will expand eligibility for MAID beyond people who are nearing the end of life, and could possibly result in other changes.”

So, while this consultation is important, the government clearly made its decision about expanding MAID when it refused to appeal the Truchon decision. Now it is not a matter of whether eligibility will be expanded, but how far and what “safeguards” will be implemented.

Those questions will be essential for the MAID review this summer. The review is a requirement of the 2016 changes to the Criminal Code that created an exemption for MAID, as described above. It is important to observe that with this single legislative change, what was a criminal offence was transformed into a legal act; proponents would go further and say that MAID is not only legal, but moral, ethical, and good.

In terms of the review, the 2016 amendments directed one or more independent reviews to consider MAID requests for:

• Mature minors – children who are considered mature enough to consent to their own medical treatment
• Advance requests – where at the time of death the patient would not have the capacity to consent
• Mental illness – where mental illness is the sole underlying medical condition

The Canadian Council of Academies has already completed a review of these topics and released three final reports in December 2018. Each of these justify a lengthy discussion on their own, but that will have to await a future post.

As one of my CCCC’s colleagues observed, it is heartbreaking to see courts reflect and affirm the notion that life is meaningless for people with disability or illness; that suffering is meaningless; that suffering is to be avoided at all costs even if it undermines the inherent worth of each human being. It is also heartbreaking to see that we are quickly moving so quickly to expand MAID.

Dr. Kerry Bowman, a Clinical Ethicist at Mount Sinai Hospital who is generally supportive of MAID, recently expressed concern in a media interview that, “the day will come when we’ll see a person in a wheelchair, with whatever disability, and rather than think, ‘Can I be of any help to them?’ we’re going to think, ‘Why would they do that to other people and to society? Why wouldn’t that person move on?’”

As Christians we know that our worth is not contingent on utilitarian measures of what we can contribute, how our physical bodies function, our degree of happiness, or any other human metric we may develop. It is based on the fact that we are created in the image of God. We also recognize that Christ suffered for us; it is by his wounds we are healed. Our nation needs a message of healing and hope more than ever. Make your voice heard – complete the questionnaire and take the opportunity to provide important feedback about the value of life and the concerns you have.

The MAID questionnaire is open until Monday, January 27, 2020 at 11:59 p.m. (PST).

If you’re looking for more, here are a few additional resources to inform you on the issue of MAID, its expansion, conscience rights, and how you can engage on this issue beyond the questionnaire:

Barry Bussey, “The Right of Religious Hospitals to Refuse Physician-Assisted Suicide” (2018) 85 SCLR (2d)

Derek Ross and Deina Warren, “Religious Equality: Restoring Section 15’s Hollowed Ground” (2019) 91 SCLR (2d)

Barry Bussey, “Getting Serious About Conscience Rights”

Christian Legal Fellowship, Background Paper “Euthanasia and Physician-Assisted Suicide in the Case of Mature Minors, Advance Requests, and Mental Illness: Legal, Ethical, Cultural, and Clinical Considerations” (6 October 2017)

Christian Legal Fellowship, Submission to the Canadian Council of Academies on Medical Assistance in Dying in Canada (6 October 2017)

Evangelical Fellowship of Canada, Submission to the Canadian Council of Academies on Medical Assistance in Dying in Canada (3 October 2017)

Evangelical Fellowship of Canada, Briefing Notes on Euthanasia and Assisted Suicide (April 2016)

Evangelical Fellowship of Canada, sample letter to the Minister of Justice

[1] 2019 QCCS 3792

[2] Ibid, at paras 304-310

[3] Ibid, at paras 625-638

[4] For more on the CMDS v CPSO decision, see my Horizons column CCCC Bulletin (2019:3)

The post Euthanasia: Tell the Government what You Think appeared first on CCCC Blogs.

So what would you say if government officials required you to teach your children that the Easter Bunny was real, and that Santa Claus was too? If you did not confirm these “truths,” the government would remove your children from your home? Sounds crazy, doesn’t it?

As of 2018, Canada now has on its historical, legal record a case where a judge had to rebuke Hamilton’s Children’s Aid Society for removing two young girls from their foster home because the parents refused, based upon their religious beliefs, to say that the Easter Bunny and Santa were real.

Justice A. J. Goodman of the Ontario Superior Court of Justice must have thought it surreal as he read the facts before him. The young couple, Derek and Frances Baars, are Protestants of the Free Reformed community. They do not practice Christmas and Easter as most Canadians do. However, they said that they were willing to have an Easter egg hunt with their two foster girls; they just would not tell them that the Easter Bunny hid the chocolate. They also said they would give Christmas presents, but would not say that Santa came down the chimney with his reindeer on the roof. Their point: they do not, and would not, lie. It is a religious thing. Honesty and integrity form who they are, just as they attend church every Sunday and say prayers at every meal.

​​The social workers, however, argued​ ​that ​the Baars were ​neither supporting the position of the agency nor meeting the needs of the girls. ​In effect, ​they argued that believing in the Easter Bunny ​was a necessity for children.

Justice Goodman recognized that freedom of religion, as understood in Canada, allows individuals to embrace, openly declare, and manifest their beliefs. Citizens are free to live their lives in conformity with their beliefs. The state, on the other hand, is to be neutral on matters of religion. This fundamental right was violated when the social workers insisted that the Baars tell the girls a fictitious creature was real. Incredibly, one of the workers insisted that by making that requirement she was not asking the Baars “to lie or to betray their faith,” but rather was “concerned that the idea of the Easter Bunny would be destroyed for these young children” if the parents insisted that “the Easter Bunny was not real”.

Justice Goodman didn’t buy that characterization. He said he was “more than satisfied that the Society’s actions interfered substantially with the Baars’ religious beliefs.”  He was also mindful that it was not up to the social worker to try to convince the Baars that endorsing the Easter Bunny was not a violation of religious beliefs. To the Baars, it was. The judge noted that the Baars “were constantly promoting the children’s wellbeing, and ensured that they were safe, secure, and happy.” Tragically, when balancing the Easter Bunny against a stable, safe environment for these two children who already had suffered more turmoil than they deserved, “the Society,” said Goodman, “very clearly chose the Easter Bunny.”

Reading through the decision, I could not help but struggle with my emotions. I was tempted to laugh at the sheer stupidity of the case. But my mirth was overshadowed by the sombre realization that two precious young girls were forcibly taken from a couple who loved and cared for them. Taken because the state – in its great wisdom – could not understand the values of a Christian couple who placed truth and integrity above materialism.

The moral of this story is simple. Our government does not understand religion. It cannot comprehend it. It does not respect it. But what it does understand is power: power to do what it wants for whatever reason it desires. For that very reason we can be thankful that we have a system of justice with a Charter and independent judges who take seriously their role in protecting citizens from a wayward state.

While we can applaud this just and well-reasoned judgement, the fact remains that two little girls needlessly suffered the loss of a loving and secure foster home. We can only hope they are now with a family as tender and truthful as they once had. The Baars have also since moved on – to Alberta, apparently – but they still suffer the painful “what ifs”. All because the state demanded they lie about the Easter Bunny. This, in 2018. In the democratic and diverse nation of Canada!

The post Lie, or Lose Your Children appeared first on CCCC Blogs.

You will remember that just before Christmas the federal government announced that it will no longer grant Canada Summer Jobs (CSJ) funding to employers unless they attest that they are in favour of government ideology on social policy. The attestation says:

both the job and my organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights. These include reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression.

Many Christian charities have decided that they cannot attest to this statement as it is worded for a number of reasons. First, it is vaguely written, being open to a number of interpretations; second, it appears to suggest that charities are responsible for applying the Charter in their workplace as if they were government actors, which they are not; third, it introduces a new values test for government support. No one should ever have to agree with government opinions in order to access government programming.

Not only religious groups have voiced their opposition; many across the political and social spectrum also recognize the problem. As Paula Simons, of the Edmonton Journal noted on January 17, 2018:

“I’m a pro-choice feminist. But I find myself deeply disturbed by a new federal rule that says any small business or not-for-profit group applying for a Canada Summer Jobs grant must first “attest” to their support for legal access to abortion. Where does that leave groups like Catholic Social Services or the Mennonite Centre for Newcomers or other faith-based social service agencies that do vital work in our communities? And where does that leave respect for the Charter itself? I support a woman’s right to control her body. But I also support freedom of conscience, of religion, of thought.”

The government sought to alleviate opposition by issuing “Supplementary Information”. However, this did not satisfy the criticism because their definitions only created further confusion while keeping the attestation in place.

The motion before the House of Commons today, which will be voted on March 19, states as follows:

That, in the opinion of the House, organizations that engage in non-political non-activist work, such as feeding the homeless, helping refugees, and giving kids an opportunity to go to camp, should be able to access Canada Summer Jobs funding regardless of their private convictions and regardless of whether or not they choose to sign the application attestation.

During today’s debate the government continued to insist that they are not seeking compliance with beliefs, but rather activities. They argue they are concerned with the actions of those organizations such as the Canadian Centre for Bio-ethical Reform that display pictures of aborted fetuses and distribute anti-abortion literature door-to-door.

The government fails to recognize that regardless of how the government has reinterpreted the attestation, religious communities still maintain that they cannot and will not “check the box.” They cannot separate their beliefs from their activities. In essence, the government is saying, “Trust us and tick the box. We will not discriminate against you if you are not doing what the CCBR are doing.” That is precisely the problem. The failure to remove the attestation has meant a loss of trust for many who oppose.

Michael Cooper pointed out that while the Prime Minister talks “diversity, inclusivity, tolerance — actions speak louder than words. Actions are different than their words. They have no regard for fundamental freedoms.” He called on the government to “Do the right thing and withdraw this bigoted test.”

Ted Falk pointed out that “Political leaders need to make peace with diversity.” That includes the religious community which may not have the same view as the government.

Mona Fortier countered that, from the government’s perspective, “Taxpayer’s money should not be used by organizations that would undermine rights of women to make their own choices.” She noted “We extended the deadline by one week. Under represented young people — indigenous, immigrants, minority languages, LGBTQ2 — all have the right to be included.”

Similarly, Brian May claimed “There is a lot of misinformation on the CSJ, but there are strong supporters of the attestation.” He explained, “CSJ requires the job and organization respect the Charter of Rights and Freedoms. Our duty is to preserve our values and values underlying the Charter.”

Identifying the central issue at stake, Harold Albrecht argued, “No one has the right to prevent others to practice their beliefs, especially the government. Think about the loss to our community because groups could not sign the attestation.”

Kevin Sorenson asked, “With all due respect, what’s next? Now it is about #CanadaSummerJobs. If we do not line up with the government, what’s next?”

That line of questioning was taken up by Lisa Raitt who suggested what could be next. She noted that the CRA’s application for registered charitable status is quite extensive. A charity’s application to be registered already entails screening of purposes and activities to ensure that they are not contrary to Canadian public policy. She then queried if the CRA already does such a review, why this attestation? In her view, the attestation requirement is about changing the Canadian public policy so that eventually the government will force registered charities go through a similar test.

When I posted Raitt’s comments on my Twitter account I was interested to see that one pro-choice advocate confirmed that, indeed, Raitt is on the right track.

They also provided a link to the Abortion Rights Coalition of Canada’s policy paper wherein they call for the removal of registered charitable status of charities that do not support abortion.  As the paper points out:

Almost all anti-abortion groups are religiously-based and motivated, because the anti-choice viewpoint is fundamentally a religious doctrine. Some counselling groups proselytize openly (often to unsuspecting and vulnerable clients), even though they obtained their charitable status on claims of being “educational” or engaged in “research” or “family/crisis counselling.” In fact, most Canadian anti-abortion counselling centres with charitable status are explicitly Christian.

Given the fact that the federal government is highly attuned to the demands of the pro-abortion community, this latest call for the removal of registered charitable status for religious communities that have an “anti-abortion” position has got to be taken seriously. This forms part of the reasoning which compels CCCC and other religious groups to push back against the CSJ attestation requirement. In short, the attestation is but the thin edge of the wedge.

On March 19 the House of Commons will continue this debate and a vote will be called. In the meantime, there is much work to be done. You can contact your local Member of Parliament requesting that he or she vote in favor of this motion, because through this motion the country has an opportunity to let its voice be heard. The result will directly impact the lives of students and public benefit programs that charities, non-profits and small businesses have been unable to carry out thanks to the attestation requirement. To find out who your Member of Parliament is and how to contact them go to http://www.ourcommons.ca/parliamentarians/en/constituencies/FindMP

The post Parliament to Vote on March 19 on the Canada Summer Jobs Program appeared first on CCCC Blogs.

In the Christian community, summer camps are significant users of the program. Church-run or church-affiliated summer camps rely on government funding to hire hundreds of students to work as camp counsellors and instructors. These jobs provide students with the opportunity to learn life skills while doing great work for the younger children in their care. These programs are now threatened.

The federal government’s new policy requires applicant organizations to agree with the government’s policy on abortion and its norms on sexuality in order to participate in the program. This is an unjust requirement that belies the government’s obligation to be neutral in matters of religion. The policy also lays bare the fact that government is no longer willing to allow diversity of opinion on moral issues. This troubling development will have a negative impact on our members.

Canadian Council of Christian Charities will be active in the new year to study its options for addressing this latest challenge and protect its members’ interests.

In the meantime, we wish our members and the general public a Merry Christmas and a Happy New Year.

The post CCCC Is Concerned about the Administration of the Canada Summer Job’s Program for 2018 appeared first on CCCC Blogs.

Sign on TWU Campus

I detected a general theme in the respective Court of Appeal arguments of the Law Societies in British Columbia and Ontario over the last two weeks.  “We are the experts.  We know what we are doing.  Now give us deference.  Our decisions against accrediting Trinity Western University’s School of Law are reasonable.”

The final hearing of the TWU controversy was held June 7 before the Ontario Court of Appeal in historic Osgoode Hall, Toronto.  There TWU lawyer Robert Staley faced the Law Society of Upper Canada’s lawyer Guy Pratte.  It was fiercely contested.  Each eloquently put forward their clients’ position.

TWU argued that the LSUC did not correctly apply the proper legal test in its decision making process, thus eviscerating its religious freedom.  To understand the argument you first need to understand how the courts analyze Charter rights.

The Charter protects citizens from the state.  It is the supreme law of the land.

The “state” can be government officials, politicians, legislatures, police, or bodies that have been delegated authority by the state such as law societies.  Law societies are known in this context as “state actors” – they are created and authorized by the provinces to protect “the public interest” in the practice of law.  They regulate who can be lawyers, establish the professional ethic codes, set the ongoing education requirements, and discipline lawyers as necessary.  Professions, such as law, covet such roles.  From one perspective it is highly irregular to have the public interest of an influential profession being safeguarded by the profession itself.  On the surface it looks like a systemic conflict of interest.  However, there are measures to soften that by including members of the public on the Society’s governing council, known as “the Benchers”.  Nevertheless, it is extremely important that these “state actors” are mindful of the law and of the competing interests in the cases they have to decide.

Supreme Court of Canada

The Supreme Court of Canada (SCC) laid down the rules as to how administrative bodies, such as law societies, are to decide cases that involve constitutional rights.  The law is laid out in the 2012 case known as “Doré v. Barreau du Québec”.  Doré teaches us that when a law society is faced with a decision that involves claims of Charter rights it must follow a particular formula or “test” in its analysis.  If it does this it will be considered a “reasonable” decision even though it could have arrived at a different conclusion using the same test.  In other words, the Court is saying, the law society is the expert panel to decide issues that come within its jurisdiction and must be given deference in its decisions.  It may not be the way a court would decide but it is within the realm of “reasonableness.”

The Doré test that applies to administrative tribunals operating under a statute then is this:  What are the statutory objectives?  Is there a Charter right or value engaged?  How will the Charter value at issue be best protected in light of the objective?  In other words, what would be the least onerous and least restrictive infringement on the constitutional right or value while carrying out the statutory objective in the case?

The Law Society arguments made in Ontario and British Columbia have centred on the Doré test.  They maintain that the statutory objectives include the “public interest” of ensuring that there is equal access to the profession for all people.  It is here where TWU fails they say.

TWU has a Community Covenant, a contractual arrangement, between the University and its students, wherein each student agrees to abide by its terms and conditions.   It’s a basic arrangement not unlike numerous other Christian universities in North America that establish the religious nature of the campus environment.  One of the requirements is that the students not engage in sexual activity outside of the traditional marriage (one man, one woman).

The law societies argue that TWU can maintain its religious campus.  That is TWU’s constitutionally protected religious freedom to do so.  But when TWU comes to a public body for state recognition of its degree then it must abide by the public norms.  The refusal to accept LGBT students who do not accept the Community Covenant is discriminatory.  As a result the law societies cannot accredit the TWU School of Law.

TWU lawyers in Ontario (Robert Staley) and British Columbia (Kevin Boonstra) argue the law societies did not apply the Doré test in reaching their conclusions.

Ontario Court of Appeal

Osgoode Hall – Ontario Court of Appeal – TWU hearing was in Court Room 1

At the Ontario Court of Appeal, Robert Staley went through the transcript of the Benchers as they made their decision.  “Not a single Bencher followed the Doré analysis,” Staley informed the Ontario Court of Appeal.  Instead the Benchers spoke in absolutist terms that the rights of the LGBT community must not give way.

When asked by the Justices about the references the Benchers made about “balancing” the rights of religious freedom and equality rights, Mr. Staley noted that the Benchers’ use of the “buzz words” did not in and of itself mean they applied the proper Doré analysis.  What they did, Staley maintained, was to use part one of the Doré test – that is they recognized that they were to exercise their duty to maintain the public interest by ensuring equality of access to the practice of law.

However, even here, Staley argued, the Benchers failed because there was no public interest engaged.  The only public interest was that of ensuring that TWU graduates were competent to practice law, which the Society has agreed they would be.  Further, the recognition of TWU’s law school did not take away any right of the LGBT community.  Recognition of one right does not mean a diminution of the rights of others.

Even if they could say that there was a public interest engaged, then the Benchers should have applied the second part of the Doré test which was:  what would be the least onerous and least restrictive infringement on TWU’s religious freedom while carrying out the statutory objective of ensuring equality of access?

The Benchers did not bother.  They refused to even consider accommodation.

In essence, I take Staley’s argument to be, that the Benchers were so opposed to the teachings of TWU that they were blinded by their distaste of the belief of traditional marriage that was manifested in the Community Covenant.  That blind opposition meant they did not even entertain the thought of how they were to find a way of accommodating TWU’s religious freedom.  It was simply rejected.  There was no possibility as far as they were concerned.  It was repugnant, plain and simple, and did not need further consideration.

Staley argued that the Divisional Court’s decision provided a Doré analysis of how the Benchers could have arrived at its decision.  But it is not the role of the courts to do the work of the administrative tribunals.  The tribunal, in this case the Law Society, is to be the expert and given deference.  However, the Law Society does not to get “a free ride” since fundamental religious freedom is at stake.

Guy Pratte, the lawyer representing the Law Society, argued that the Society’s decision was reasonable as the Divisional Court showed.  For 200 years the Society has played the role of the gatekeeper to the profession and over time it has sought to remove barriers rather than raising barriers.  To support TWU’s law school would be to endorse TWU’s discrimination.  Admission to a law school should be based on merit, not on religion.

Mr. Pratte asserted that the religious freedom TWU wants to advance goes further than keeping its own faith.  It seeks to enforce it on others who are “not part of the club.”  However, when they enter the public sphere and enter into a public profession they have to lay their beliefs aside.  Denying applicants on grounds of sexual orientation has nothing to do with the merits of being a lawyer.  They cannot force the Law Society to approve that.

Entrance to the Law Society of Upper Canada

If the Law Society breached the freedom of religion in its decision making process because it did not follow some “magic words” it does not matter.  TWU’s position that the Doré analysis was not followed is an argument of “form over substance.”  What matters is the outcome.   And the outcome was a reasonable decision.  Since the Divisional Court used Doré and arrived at the same conclusion then how can the Law Society’s decision be unreasonable?   It is not unreasonable for the Law Society to say that religious freedom does not go so far as to force your beliefs on another.  The Law Society was asked a “binary” question – it was a simple “yes” or “no.”  After seriously considering the issues the Law Society said “no”.  The Law Society could have said “yes” and if it did – that too would have been reasonable.  TWU does not “get to have everything.”

When the court pointed out that TWU did not get anything.  Mr. Pratte noted that there is only one part of the Community Covenant that is at issue.  The Society would have no problem with the Covenant if it were not made mandatory of TWU students.  It is concerned with the exclusion of students at the “door”.  Religious conduct is worthy of less protection than beliefs.  Though there are only a few from the LGBT community who would want to attend TWU, the state doesn’t take the sting out of the discrimination by closing its eyes or holding its nose because of the few.

In reply Mr. Staley reminded the court that the Doré analysis is not simply a magic formula but a very clear direction from the Supreme Court as to the proper analysis that is to be applied that ensures Charter rights are respected.  There was absolutely no evidence that the Law Society considered what was the least infringement on TWU’s rights.

Lawyers representing TWU and supporting interveners at Ontario Court of Appeal

British Columbia Court of Appeal

Entrance to the British Columbia Court of Appeal

The TWU case in BC is different from Ontario in that the Law Society of British Columbia (LSBC) had first voted to accredit TWU’s law school but then decided to change its mind.

The LSBC was faced with what it thought was a no win situation.  When the Federation of the Law Societies of Canada approved the school, BC lawyers in opposition to TWU called on the LSBC to disapprove the Federation’s decision.  After much debate and discussion about the competing rights of religious freedom and equality issues the LSBC decided, in April 2014, not to overturn the Federation.

However, the opposition got louder and demanded a Special General Meeting in June to discuss a resolution demanding the LSBC to overturn its support of TWU.  That meeting was held in several locations simultaneously throughout BC.  Those who attended reported to me that there was tremendous animosity expressed towards TWU for having the audacity to ask that its religious rights be respected.  It was a classic case of a crowd being ticked off at the minority that stands its ground on matters of conscience.  The vote at the SGM was overwhelming against TWU.

In an attempt to overcome the impasse the LSBC decided, in September, to hold a referendum of the entire membership rather than to have another extensive debate as it did in its April meeting.  Not surprisingly, the referendum results were against TWU.  Upon judicial review, Chief Justice Hinkson ruled that the LSBC had illegally fettered its discretion by turning over its decision making jurisdiction to the membership rather than having a full consideration of the issues as it did in its April decision.  He then ordered the reinstatement of the April decision thereby approving TWU School of Law.  The LSBC appealed.

At the Court of Appeal, LSBC lawyer, Peter Gall argued that there were three issues to consider.  First, whether the LSBC had the jurisdiction to approve or disapprove TWU.  Second, how to reconcile the competing rights in light of LSBC’s statutory obligations.  Third, whether using the means of a referendum was an appropriate process.

Gall explained that the law society was in a no win situation.  It was going to be faced with opposition whether it approved TWU or not.  CJ Hinkson’s decision said that the LSBC didn’t balance the rights and more should have been done.  But what more could have been done or could it do now, Gall asked?

The court noted that the LSBC had given its jurisdiction over to the members of the entire law society to make the decision involving Charter rights.  To which Gall responded it is difficult and it depends upon the “lens” you use to look at the right from either the perspective of religious freedom or equality rights – there is a reasonable answer both ways and therefore it was reasonable for the LSBC to allow the members to decide the matter.  The LSBC still could override the members if what they decided was unreasonable.  In this case their decision not to approve TWU was reasonable.

The court had a rough time with this line of argument.  One justice asked, “So the entire members are able to conduct a Doré analysis?”  Another asked if at the point the members were engaged in making the decision were they then all “Benchers” under the enabling legislation of the LSBC?  Mr. Gall continued with his line of reasoning that the Benchers were able to ascertain whether all of the rights were being properly assessed to ensure the final result was reasonable.

Still the court struggled with the idea that the entire body of lawyers could be granted such decision making power.  The court asked to whom it gives deference to – the LSBC Benchers or the members?

Chief Justice Bauman said, in what appeared to be a look of wonder, “That would make the Law Society the largest tribunal in B.C.”  There are over 10,000 lawyers in BC.

“Potentially, yes.”  Replied Gall.  The court was wanting to be clear and asked whether that would also mean the LSBC could give matters of discipline of lawyers over to the complete membership?

“Yes,” came the reply. They could by SGM resolution take up matters of discipline. If it is an important issue for members as a whole to decide, the LSBC could delegate it to the members.

Mr. Gall went into an extensive discussion about the objectives of TWU and argued that to change the Community Covenant so that it is not mandatory would not affect those objectives.  Such a compromise would not prevent teaching from an Evangelical perspective.  TWU welcomes students who are not evangelical to attend and that does not impact the associational rights so why is it necessary to have a covenant dealing with sexual intimacy?

The court asked if the LSBC was challenging the “bona fides” or validity of the rule of faith of the religious people at TWU.

“No,” replied Mr. Gall.  He went on to explain that the question is whether there is a proportionate result from a proper balancing of the  beliefs and practices of TWU  against the equality considerations of the LGBT community.  Emphasis should be given to the determination of  the impact on TWU’s beliefs and  the objectives of the law school.

The court noted that it is not for the court to say whether the belief is important to TWU or to intrude on those beliefs.  Mr. Gall agreed but he explained  that the court does have to determine the extent of the harm if insignificant or trivial.  Mr. Gall observed that it is not easy to weigh but one has to look at the impact of what the LSBC statutory mandate is on the Charter right.  The balancing must be made with the LGBT community losing out on 60 law school spaces and the psychological harm of seeing the state approve and in so doing, condone a discriminatory school of law.  Such an endorsement would harm the public interest of protecting the administration of justice.

The Benchers’ October decision not to approve on basis of the memberships view was consistent with the statutory mandate and its constitutional obligations.  It was a proportionate balance of the competing rights.  The question on review is whether that decision of the Benchers was reasonable.  To determine reasonableness the court must look at the impact of the competing rights.  When you consider the stated objectives of TWU to have a law school what is the impact of removing from the Community Covenant the offending provision?

Kevin Boonstra, TWU’s counsel, argued that the court has to consider the contexts – the statutory context and the factual context.  The statutory context requires the court to determine whether the Benchers had the authority to determine admissions policies of a law school.  The statute gave the LSBC authority over qualifications to practice law and not the determination over how law schools are run.  The factual context discloses two opposite decisions of April and October.

Mr. Boonstra noted that there can only be one correct decision that is consistent with the public interest.  The Doré analysis requires that the impact on a Charter right must be infringed only as what is absolutely necessary to carry out the public interest.  If in April that meant that TWU’s school of law was approved, what made the difference to that calculation in October?  Why could the LSBC no longer accommodate TWU’s interest?  Why was it necessary to remove the right altogether in October?

TWU serves the needs of the Evangelical community.  They believe in moral boundaries.  There is no distinction between what one believes and how one lives one’s life.  You cannot pick and choose which boundaries are important and which are not.

TWU’s mission is to educate the whole person – called spiritual formation.  There are codes of conduct in other evangelical organizations.  The Federation looked at the rules of US Christian law schools and found that it would not be an impediment to practice law in Canada.  American students from those schools would be able to practice here.  TWU is not availed this right in Canada. [But it is interesting to note that if TWU were in the US, its students would be able to practice in Canada through the current rules of the Federation.]

In its April meeting the LSBC undertook a full public review.  Two legal opinions were obtained that supported TWU’s position.  All of the issues of accommodation and balancing of rights were reviewed.  In the end the Benchers voted in support of TWU.

The court asked how it could be fair to allow the April decision to stand when it was clear that the LSBC wanted to change its position.

Mr. Boonstra noted that the LSBC was motivated by political and governance pressure within its ranks.  In October there was no balancing considered. It was simply what the members wanted.  Only a proportionate balancing underlying a decision makes it a reasonable decision as noted in Doré where rights are limited only to the extent necessary to maintain the legislative objectives.  It was the duty of the Benchers to conduct this analysis not the members.  The transcripts clearly show that October was a political decision and not a substantive review.

Mr. Boonstra also noted that the 2001 Case that involved TWU’s education program was a binding precedent in this matter.  The BC College of Teachers argued that they could not condone the discriminatory admissions policy of TWU.  The Supreme Court of Canada ruled that TWU was not for everyone.  Boonstra went on to note that since 2001 the protections of religious freedom have increased in SCC decisions including the right of religious communal rights in the Loyola decision of 2015.

In reply Mr. Gall stressed the importance of the court to give deference to LSBC and though the process in October may not have been in accordance with the Doré analysis, at the end of the day it is whether the decision was right.

Lawyers representing interveners supporting TWU at the BC Court of Appeal

Concluding remarks and observations

With the Courts of Appeal in British Columbia and Ontario having held their hearings we are now at the end of this phase of the TWU saga.  Over the coming months we  wait for the decisions from three Courts.  Nova Scotia’s can be expected anytime in the coming weeks.  I do not expect to hear from Ontario or BC until the fall.  Whatever the results, we can expect that this case will be heard at the Supreme Court of Canada.

It remains baffling that TWU would have to put forward so much money, energy and effort to defend its right to open a law school.  One only has to consider that TWU is not subject to the Charter.  In other words, it is not a state actor that it has to open its doors to whoever applies.  There are never any requirements for religious institutions to be other than who they are.  By definition religious communities discriminate.  They have to.  In fact, the human rights laws and the Constitution provides the space for this.  That is what the Supreme Court in 2001 explicitly stated about TWU.  TWU’s “discrimination” is lawful.  It is how it works.  How can you have a church where anyone can be a minister of that church even if they do not hold to the church’s beliefs?  How can it be said that a university remains a religious university if it cannot hire faculty and accepts students who are willing to abide by its religious principles?  It simply makes no sense.

The millions of dollars that have been spent in defending TWU’s right to have a Code of Conduct that supports its religious beliefs on marriage is beyond comprehension.  It seems there is a growing opinion among some legal elites in Canada that has moved beyond the judiciary.  This is evident in Nova Scotia and British Columbia where the lower courts supported TWU’s position.  While the Ontario Divisional Court’s decision is the outlier so far it is also a direct challenge to the Supreme Court’s 2001 decision which said that “TWU is not for everybody.”  For the Ontario Divisional Court it would appear that TWU’s law school is not for Ontario.

From my attendance at every court of appeal hearing in this case I sense that there is a great deal of sympathy for TWU’s position.  At the very least, the justices appear to understand TWU’s position.  It seems to me that there is a lot of work to do in informing the public, the opinion makers, and policy makers about the importance of this case.  In my opinion, this is the most important religious freedom case in recent Canadian history.  The implications of a loss in this matter is huge.  Where, for example, will the logic end if TWU loses?  If the law societies can deny TWU, what about all the other professional organizations?  Would there be a movement to move against other religious colleges and universities in other disciplines?  I think that is exactly where we are headed.

One of the interveners, LGBTQ Coalition, argued that if the LSBC had approved TWU it would be an “endorsement of an unconstitutional definition of marriage.”  An unconstitutional definition of marriage?  That is a remarkable statement.  It is a very good thing that the Supreme Court of Canada in 2004 decided that clergy who performed only such “unconstitutional” marriages of one man and one woman would be protected.  Further, the SCC also said in 2004 that churches could exclusively use its facilities for “unconstitutional” marriages of one man and one woman.  Without those very minimum protections there is no question, in my mind, that there would be demands for the use of all churches for whatever “constitutional” marriages people would want.

I have said it many times before but this case is about trying to find a way for various communities, with very different views on basic moral issues, to be able to live on the same piece of real estate in civil peace.  A failure to allow TWU to have a law school because of its religious views and communal practices – practices that are constitutionally protected – is a step back from the promise of Canada that we have all enjoyed.  The Supreme Court of Canada noted in the 2001 TWU decision:

Indeed, if TWU’s Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church.  The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.  (Paragraph 33.)

The denial of TWU’s school of law would mean that we can expect our individual church membership may be cause for denial of state issued licenses.  That would not be a recipe for a diverse Canada.  In other words, we are fast approaching a time where there will be significant pressure against a diversity of communities and religious views.  Monochromatic hegemony is approaching.

Equality Before the Law – the lion and the lamb outside of the Ontario Courts in Toronto

The post The Experts Demand Deference: Law Societies & TWU appeared first on CCCC Blogs.

Entrance to the British Columbia Court of Appeal

Today Mr. Justice Peter M. Willcock, of the British Columbia Court of Appeal, granted leave for the Canadian Council of Christian Charities (CCCC) to intervene in the case involving Trinity Western University (TWU) and the Law Society of British Columbia (LSBC). Barry W. Bussey, Director of Legal Affairs at CCCC represented CCCC at the Court of Appeal.

Barry W. Bussey, Director of Legal Affairs, CCCC

TWU wanted to establish a law school but was denied accreditation by LSBC because of its Community Covenant which defines marriage as one man and one woman. The LSBC had originally approved the law school but because of political pressure from its membership it decided to hold a referendum on the issue and agreed to be bound by its results. The BC lawyers overwhelmingly voted against TWU’s law school proposal.

TWU initiated a judicial review of the LSBC decision. In December 2015 Chief Justice Hinkson, of the British Columbia Supreme Court, ruled that the Benchers of the Law Society had “improperly fettered their discretion and acted outside their authority in delegating to the LSBC’s members the question of whether TWU’s proposed faculty of law should be approved for the purposes of the admissions program.” Hinkson also found that Law Society made its decision without proper consideration and balancing of the Charter rights at issue. He ordered that the original decision to approve the law school stands.

The Law Society appealed Chief Justice Hinkson’s decision to the British Columbia Court of Appeal. While CCCC was granted intervener status by Justice Hinkson in the lower court there was no guarantee that it would receive intervener status at the Court of Appeal. Intervener status allows bodies like CCCC to assist a court in making a determination in the case it has to adjudicate. In other words, the court has the benefit of understanding the wide implications their decisions will have by hearing from the interveners.

Lawyers representing the “pro- TWU” interveners at the BC Court of Appeal. March 30, 2016.

The hearing at the BC Court of Appeal will be held June 1-3.

Meanwhile Bussey will be making arguments next week (April 6-8) in Halifax at the Nova Scotia Court of Appeal where CCCC has intervener status in the TWU Case there. The Nova Scotia Barristers’ Society has appealed the January 2015 decision of Justice Jamie S. Campbell, of the Nova Scotia Supreme Court, who ruled in favour of TWU.

The post CCCC Granted Intervener Status at the BC Court of Appeal on TWU Case appeared first on CCCC Blogs.