June 15, 2018, will go down in history as the day that the constitutional promise of religious freedom was betrayed.  In the next few minutes I will explain why.

The Supreme Court of Canada released two decisions against Trinity Western University’s bid to have a law school, one involving the Law Society of British Columbia and the other involving the Law Society of Ontario.  Simply put, they have disrupted our understanding of the accommodation of religion in a dramatic way.

Trinity requires students to sign a “Community Covenant” saying that they will respect the school’s religious teachings, including the requirement that sexual relations be kept within the traditional marriage relationship of one man and one woman.  That, the law societies said, was discriminatory, and they refused to accredit Trinity’s law school on that basis.  In its decisions, the Supreme Court ruled by a vote of 7 to 2 that the law societies’ decisions were reasonable.

However, I take the position that the Supreme Court’s decisions were themselves unreasonable and are a harbinger for serious religious disputes to come.

First, the law societies have no statutory authority to investigate the admissions policies of law schools.  This was pointed out by Justices Côté and Brown in their dissent.  They criticized the seven-member majority of the Court by noting that a law society is “not a roving, free-floating agent of the state.  It cannot take it upon itself to police such matters when they lie beyond its mandate.”

It is important to keep in mind that there has been no challenge to the academic calibre of TWU’s proposed program. The curriculum is exemplary and innovative, and its focus on charity law would have addressed a void in legal education. Plus, its practical emphasis on justice for the marginalized and impoverished seems a far cry from the critics’ depiction of TWU as harmful or degrading. As far as the program itself is concerned, there was and is no legitimate concern or objection to accrediting TWU’s law school.

But that did not worry the Court majority since, in their view, the law societies were operating in the “public interest.” The Court expanded on the term “public interest” to allow the law societies to pass judgment on the religious beliefs and practices of Trinity.  The Court said that being in the public interest, the law Societies were entitled to promote “equality” by ensuring equal access to the profession supporting diversity and by preventing harm to LGBTQ law students.

This was justified, said the Court, because when government administrative authorities carry out their work they must not only be concerned about Charter rights, but also Charter “values.”

Charter “values” have become a familiar term over recent months with the current Canadian Government’s Canada Summer Jobs program.  You will remember that the Government is requiring applicants to agree with the concept of Charter “values” in order to be granted funding.

In this case, the Supreme Court has now ruled that Charter “values” are, quote, “accepted principles of constitutional interpretation.”

This is a worrying development.  Here’s why.  Charter “values” are very subjective.  Justices Côté and Brown explain that Charter “values” have no source but the judge making the decision.  A Charter right is written in the Charter.  But the concept of “values” is undefined.  Here is what Côté and Brown say: Charter values are “entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so.”  And one judge will have a different set of values than another and those values may or may not be shared by all Canadians.  “This in and of itself,” said Côté and Brown, “should call into question the legitimacy of judges or other state actors pronouncing certain ‘values’ to be ‘shared.’”

These rulings are therefore a real problem.  With these decisions, government decision makers have acquired greater latitude to apply their own understanding of what Charter “values” mean.  But it gets worse.

As Côté and Brown explain, these so-called “values” limit “constitutionally protected rights.”  Now, notice the absurdity of what is happening.  Charter “values,” which are not constitutionally written anywhere but exist only in the mind of a judge, are used as justification to limit constitutionally protected rights.

Applied to this case, we see that Trinity has a constitutionally protected right to religious freedom.  This right allowed them to run their university in accordance with their religious beliefs.  In 2001, the Supreme Court of Canada agreed they had that right.  However, today the same Court has ruled that “Charter values” of equality are sufficient to limit that right.  To be clear, these decisions do not say that TWU has done anything unlawful. As Côté and Brown point out, the majority ruling is really a subjective “moral judgment” rather than a legal one.  It truly is a sad decision for the rule of law in this country.  This court did not like the religious practices of TWU when it comes to marriage – plain and simple – and then took away their right of religious freedom.  The Court is now sanctioning the use of the Charter as a sword rather than a shield.  The Court is now saying that the state can enforce its own views on the religious opinions of others.  As I will discuss later, this is now a case where the Court is sanctioning the state to go on a “secularising mission” to ensure that religious enterprises are in compliance with government views of “Charter values.”  We are entering unchartered territory.

Côté and Brown also noted that “Charter values” are “amorphous” and “undefined.”  Listen to what they said: “Charter values like ‘equality’, ‘justice’, and ‘dignity’ become mere rhetorical devices by which courts can give priority to particular moral judgments, under the guise of undefined ‘values’, over other values and over Charter rights themselves.”

Côté and Brown criticized the majority’s use of the term “equality,” noting that the majority does not and cannot point to a specific legal rule or right to ground the equality value in the case.  In ominous language they noted that “equality in an absolute sense is also perfectly compatible with a totalitarian state, being easier to impose where freedom is limited.”

Second, the majority decision did not make any statement about the fact that Trinity is not subject to the Charter.  That is, Trinity, is not a government actor.  The Charter only applies to government as it protects us, as citizens, from government violation of our rights and freedoms.  This basic constitutional fact was not at all considered by the Court majority.  Yet, that was a major point in the 2001 case at the Supreme Court of Canada that ruled in favour of TWU getting accreditation for its Education Eegree (TWU 2001).  The silence of the 2018 Court on this point is deafening.

By the way, the Court did not specifically state that the TWU 2001 case was overturned.  They by and large ignored it.  This is a court that is not afraid to overturn previous decisions – for example in the euthanasia debate, the court overturned its Rodriguez decision of the 1990s when it gave its recent Carter decision making Medical Assistance in Dying legal in Canada.  Thus, it is not surprising in one sense there was very little regard for its 2001 decision on TWU which was very similar to the current case.  In 2001 the SCC dealt with the Education Degree at TWU when it allowed TWU to be accredited.  In this current TWU case it was the Law Degree that needed accreditation but was rejected.  The principle of the Court being bound by previous decisions is now a legal doctrine of the past as the Court is becoming more and more influenced by politics.

Third, the Court majority said that when balancing equality rights and religious freedom, equality (in the most abstract sense) won out.  The Court claimed that if TWU were granted the accreditation, then the “Public confidence in the administration of justice may be undermined if the LSBC is seen to approve a law school that effectively bars many LGBTQ people from attending.”

They noted that “[b]eing required by someone else’s religious beliefs to behave contrary to one’s sexual identity is degrading and disrespectful.  Being required to do so offends the public perception that freedom of religion includes freedom from religion.”

Côté and Brown rejected that analysis, noting that the “role of courts in these cases is ‘not to produce social consensus, but to protect the democratic commitment to live together in peace.’”

The position of the court majority truly is baffling, especially since attendance at TWU is voluntary.  No one is forced to abide by the covenant unless they voluntarily choose to apply to TWU.  TWU is a religious university – it is not a public university.  Being religious, it is only natural that it would have religious rules that it expects its students and faculty to abide by.  The Court is in effect saying, “You Christians can’t require us to accept your views of sexuality even in private religious institutions, but we, the courts, we the government actors, can make you follow our views, and that is totally fine.”  This is simply implausible and certainly not the Canada we have, until now, been accustomed to.

The court majority took exception to TWU’s claim that religious freedom includes the right to enforce non-believers to follow the Community Covenant while they are students.  It now appears that the Court is of the view that religious freedom does not include the right to require its beliefs and practices be complied with by those non-believers who choose to attend TWU.  However, that raises a real problem as religious organizations, by their very nature, require those who want to be part of the community to follow its rules.

Indeed, over the last number of years, the Supreme Court has said that it cannot get involved in religious affairs of churches.  Only a few weeks before it released the TWU School of Law decisions, the Supreme Court said in the Jehovah’s Witnesses case that courts cannot interfere in the internal religious decisions and rules of churches.  However, in the TWU case the Court has done just that.  They waded headlong into theological issues by weighing what is or is not part of Christian practice, essentially claiming “even though you, TWU, say your Community Covenant is part of your biblically-based beliefs, but we disagree, and you cannot enforce it on the non-believers…”

What is the rational explanation for this contradiction between the Wall case, and the TWU case?  The answer I believe is this:  The Court is saying to churches and religious entities, “you can do your own thing within the four walls of your church but once you come out of those walls and run ministries such as schools, universities, and the like, then you must follow the secular rules – including the secular rules of sexuality.  You cannot require non-believers who want your program to abide by your religious practices.”  Therefore, a Christian school must allow non-believers to have access and not expect them to comply with the religious teachings of the school.

In the Nova Scotia Supreme Court, Justice Jamie S. Campbell said that the Charter is not a blueprint for moral conformity.  He ruled against the law society’s treatment of Trinity because he said the state does not have a “secularizing mission.”  It is not to go around requiring religious entities to take on the world views and morals of the government.  There can be legitimate differences of opinion and practices, and that is okay.  However, now the Supreme Court of Canada has said the opposite – it does appear that the state can secularize all religious entities that does not accept its view of the world.  That is very troubling.

Here is the crux of the matter:  How can we live in peace together while still maintaining our differences of opinion and practices on fundamental human life issues such as marriage, abortion, and end of life?  Religious communities by their very nature speak to these issues and more.  Religions are concerned about the human project – which involves deep understandings of culture.  The Court majority talked about diversity but did so in a manner that excludes the religiously committed from the public square.   There is a doublespeak going on.  They are using “diversity” language all the while excluding Christians.  That is not diversity.  That is a denial of the Constitution’s protection.

Canada has traditionally been a country that is multicultural and plural, where many different groups are able to grow and flourish.  The majority decision did not directly say so, but it has implicitly rejected the TWU 2001 decision that championed diversity.  Back then, a mere 17 years ago, the Court was of the view that multiple religious organizations mark our societal landscape and that such diversity of views should be respected.  That was then, this is now.

After these two decisions we are left with a very different understanding of Canada.  Now, even though the Charter does not apply to religious organizations, it does apply indirectly through the use of “Charter values” language.  That concept of indirect applicability was hinted at by Justice Rowe in the Jehovah’s Witnesses case a few weeks ago.  I made mention of it in my last Intersection video.

Our national Court has elevated the “offense” mantra of identity politics to a Charter value which is on par with a Charter right.  The long-term implications of this case will now be played out in the coming months as various groups who find religion offensive will use these cases as a template for further revolutionary attacks against religious entities.

However, this is indeed a different day, a different time.  A time when we must wonder what’s next?  What other public license or approval does a religious charity require from the government that allows the charity to carry out its work?  I can think of some:

–        Registered charitable status;

–        Licensing of religious elementary and high schools;

–        Universities;

o   Nursing schools;

o   Schools of business;

o   Education degree programs;

–        Nursing homes;

–        Building permits for construction;

–        Daycare centres;

–        Summer camps.

Already, even before these decisions, the Canadian government took a similar view with the issuing of summer jobs grants.  Every indication is that we are at a cultural moment where religious bodies are being pressured to leave the public square.  Only totalitarian states have done that.

In short, every government bureaucracy or agency has now been given the green light to review who they give government benefits or programs to, based on the amorphous, ill-defined concept of “Charter values”, a concept that has been shown to take away a right that has been inscribed in the Charter itself.

The former Chief Justice even stated that had TWU been given the accreditation, then the law societies would have been “condoning” the discrimination.  That is simply not so.  Côté and Brown noted that it would have instead been accommodating religious freedom not discrimination.  Rather, “by accommodating diverse beliefs and values, the state protects and promotes the Charter rights of all Canadians.”

Instead of accommodating the rights of all Canadians, the Supreme Court has now put the rights of all Canadians in a precarious position.  Rights are now subject to the Charter values – being, as Côté and Brown noted, “the idiosyncrasies of the judicial mind.”  That does not bode well for freedom in this country.  Today, it is religious freedom that has been taken away.  We, religious and non-religious alike, have every reason to be concerned.

This case will be discussed and debated for years to come.  I hope this ruling is the low point of Charter jurisprudence dealing with the troubling concept of “Charter values.”  But given the resolve of this Court to maintain this disturbing concept we are bound to suffer more loss of freedom than ever before.  This is only the beginning of a very different chapter on religious freedom than we have experienced in this country to date.  Côté and Brown stated that the method by which the Court came to its conclusions “betrays the promise of our Constitution.”

I have nothing to add to that.  These cases were certainly a betrayal of our Constitution’s promise to protect religious freedom.

Stay tuned. This story is not over yet, not by a long shot; our resolve to correct this injustice continues.

The post The Constitutional Promise of Religious Freedom Betrayed 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

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Entrance to the British Columbia Court of Appeal

Barry W. Bussey, Director of Legal Affairs has just arrived in Vancouver to appear before the British Columbia Court of Appeal this week in the Trinity Western University case against the Law Society of British Columbia’s refusal to accredit TWU’s proposed School of Law.  Canadian Council of Christian Charities was granted intervener status due to CCCC’s concerns about the freedom of religion for religious organizations.

Barry W. Bussey, Director of Legal Affairs, CCCC

Despite TWU’s proposed law school being approved by the Federation of Law Societies of Canada, and the BC Minister of Advanced Education, the Law Society of British Columbia (LSBC) decided to reverse its earlier approval.  A referendum of BC lawyers called on the LSBC to reverse course.  The controversy arises from the TWU’s admissions requirement that students sign a “Community Covenant” which outlines the code of conduct expected of its students.  Among the list of behaviour requirements such as no alcohol consumption, honesty, and respect of others is the requirement that students abstain from sexual activity outside of marriage.  Marriage is defined as between one man and one woman.

TWU sought a review of the LSBC’s reversal in British Columbia Supreme Court.  The BC Supreme Court decided against the LSBC noting that it had “fettered its discretion” by accepting the referendum result without giving TWU procedural fairness as it sought to make its case.

Bussey will argue that central to a free and democratic society is the freedom of a religious community to operate its institutions in accordance with its faith without fear of hindrance or reprisal, much less actual hindrance, interference, and blatant restriction.  LSBC is attempting to force TWU to abandon the practical and constitutionally recognized practice of its faith traditions, of its Community Covenant, as a condition of equal participation and treatment in society.

TWU’s request for a law school serves as a test of the Canadian legal academy and the legal profession’s commitment to the core principles of multiculturalism permitting a range of views and practices concerning marriage.  In 2001 the Supreme Court of Canada reviewed TWU’s admissions requirements and decided in favour of TWU.  In that case the Supreme Court stated, “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.”  For a complete copy of the CCCC factum click here.

The appeal will be held at the British Columbia Court of Appeal at 800 Hornby Street in Vancouver from Wednesday, June 1 through to Friday, June 3. The hearing will be presided over by Chief Justice Bauman and Justices Newbury, Groberman, Willcock, and Fenlon. The proceedings are open to members of the public.

Starting on Monday June 6 and continuing to June 8 the Ontario Court of Appeal will hear a similar case.  The Ontario Divisional Ruled against TWU in that province and TWU has appealed that decision.  CCCC was denied intervener status in Ontario.  However, CCCC was also granted status in Nova Scotia and argued at the Nova Scotia Court of Appeal in early April.  See the report on that hearing here.

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