On the Case: Issue 16

Where the Offended Take Away Religious Freedom

In this edition of On the Case Adjunct Associate Professor Barry W Bussey, Director of Legal Affairs of Canadian Council of Christian Charities discusses the recent decision of the Court of Appeal for Ontario in another of the long line of Canadian cases considering the fate of the proposed law school of the Trinity Western University (TWU)¹. Adjunct Associate Professor Bussey acted for the Canadian Council of Christian Charities, which was granted intervener status in this case in British Columbia and Nova Scotia, but was denied this status in Ontario. In this latest case, TWU failed to persuade the Court of Appeal for Ontario to overturn the Law Society of Upper Canada’s refusal to accredit TWU’s law school.

The Facts

The Court of Appeal for Ontario describes TWU as “ a longstanding, respected private university in British Columbia.” TWU is an evangelical Christian university which has a strong commitment to traditional Christian sexual morality. This commitment finds one expression in TWU’s Community Covenant (the Covenant) to which all students who wish to study at the University must subscribe. All students who attend the University must agree to abide by traditional Christian sexual morality. Of course, as readers of On The Case will be well aware, in this tradition, only a man and a woman who are married to each other may engage in acts of sexual intimacy. Whilst fornicators, adulterers, prospective students living in de facto relationships, polygamists and polyamorists would all be in breach of the Covenant it was not the impact on people whose sexual morality would encompass sexual activity in those contexts that concerned the Law Society of Upper Canada (and in other cases their equivalents in British Columbia and Nova Scotia). The Covenant and the University were alleged to be discriminating against persons who identify as lesbian, gay, bisexual, transgender and/or queer (LGBTQ).

The Decision

According to Ontario Court of Appeal Justice James C. MacPherson TWU’s Covenant “is deeply discriminatory to the LGBTQ community, and it hurts.”² As far as he was concerned, based on that hurt, the Law Society of Upper Canada’s denial of accreditation to TWU’s School of Law was reasonable.

Inconsistency with the Supreme Court of Canada

Justice MacPherson’s conclusion is a far different conclusion from what the Supreme Court of Canada had found in 2001³. In that year the Supreme Court reviewed TWU’s admissions policy in a case involving the accreditation of TWU’s education degree. It recognized the same hurt. Back then the Court was willing to allow applicants to be offended for the sake of keeping Canada a diverse society where not everyone agrees on matters of sexuality. The 2001 Court accepted that TWU’s admissions requirement would mean that “a homosexual student would not be tempted to apply for admission” if they did so it would be “at a considerable personal cost.” The Court understood that “TWU is not for everybody,” rather “it is designed to address the needs of people who share a number of religious convictions.”

If TWU’s standards were “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.” That was a very good point by the 2001 Court. You deny the religious university professional accreditation, because of its standards, then logically you must also deny members of a church who hold the same views as that university. It makes sense. It is clear.

“The diversity of Canadian society,” said the 2001 Court, “is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.” The Court was interested in maintaining the freedom of Canadians to hold diverse views and be different – even if others are offended – as long as such differences did not go against public policy. Traditional sexual moral views were not deemed to have crossed that line. In other words, we could be different and still live together allowing religious communities to be unlike the secular society but still remain part of the Canadian mosaic.

That was Then but this is Now

That was then. Justice MacPherson’s views are the new now – because it is 2016 perhaps. Times have changed. No longer do those views of the 2001 Supreme Court hold sway – not for the Ontario Courts and the Law Society of Upper Canada.

Justice MacPherson agreed with the Ontario Divisional Court that the Supreme Court’s 2001 decision is not applicable because it involved different facts, a different statutory regime and a fundamentally different question. However, that is a curious position given the striking similarities between the two cases. Consider this:

Lawyers are great at parsing distinctions. We do it for a living. The supposedly great distinction between the two TWU cases is this:

In 2001, the question was whether the British Columbia College of Teachers could accredit TWU’s education program, with the discriminatory admissions criteria, for fear that TWU graduates might discriminate against gay students when they taught;

In 2016, the question is the whether a law society can accredit TWU’s law program in light of TWU’s requirement that applicants have to sign the Covenant.

Catch the difference? It’s there, but rather opaque. Perhaps the general public might be excused for thinking that the distinction is rather esoteric. It is. But that is really not the point. The point is that politics not law has evolved to such a degree that the legal profession is being pressured to deny TWU’s law school because “it hurts.”

Conveniently overlooked in this technical argument is the fact that the Supreme Court in 2001 did turn its mind to the admissions requirement and ruled, as noted above, that there is a cost but in Canada we are willing to agree to disagree and move on. That does not diminish one person’s hurt because of another’s offensive view. Rather, offense is not the basis for removing a constitutional right.

What kind of society is Canada going to be when offence becomes the rationale to take away another’s right? At one time, the majority were so offended by the sexual activity of others that rights were denied. Now the tables have turned – those in power are denying the religious freedom of those whose sexual norms are centred on traditional marriage. Perhaps we have yet to learn the lesson. What if, the tables turn again – as they often do in human history? Offence is a poor substitute for law.

The future is history

As a result of the Court of Appeal of Ontario decision TWU, unlike the Law Society of Upper Canada, is on the wrong side of history – for now. “The benchers [of Law Society of Upper Canada] knew,” wrote Justice MacPherson, “that they were making an historic decision.” Historic indeed.

When the final history of this case is written we will learn a lot about the state of the law in Canada. Whether the Supreme Court of Canada decisions have a longer shelf life than 15 years? Whether private religious institutions, not subject to the Charter, can suddenly become subject to the Charter by an indirect means? Whether Canadians live in a country that has a plurality of religious views or whether the religious citizens must all give credence to the state’s definition of sexual morality?

History will also be changed as the Canadian Charter of Rights and Freedoms (the Charter) becomes the “blueprint for moral conformity” as Justice Jamie S. Campbell warned in his Nova Scotia decision⁴. Justice MacPherson’s decision has the effect of saddling private religious organizations with the burden of the Charter as is the government. Under such a regime human rights legislation becomes redundant. All private entities must ensure total equality. No more distinctions. That prospect will now challenge the very notion of Canada’s plural society. Religious communities can no longer rely on the protection of the Charter for their right to practice their distinctive religious faith. A government agency, such as the Law Society of Upper Canada, now has the full sway to determine what religious practice is “reasonable,” and do so based on subjective popular opinion of what is offensive.

This is a total rewriting of Canadian law. It is a total rewriting of the Constitutional protection of religious freedom contained in Canada’s Constitution. Canadians all - welcome to the right side of history where the offended take away religious freedom.

Why This Case is Worth Knowing About?

As a Commonwealth and common law country which has much in common this case is well worth Australians knowing about. Whilst the Australian Constitution is different to Canada’s and Australia has no Federal Charter or Bill or Rights, this decision provides an example of where the internationally recognised right to religious freedom sits today in a similar country which redefined marriage to include two persons of any sex many years ago.

¹Trinity Western University v The Law Society of Upper Canada (2016) ONCA 518 (accessible at www.ontariocourts.ca/decision/2016/2016ONCA0518.htm)
² Ibid [119]
³Trinity Western University v British Columbia College of Teachers [2001] 1 SCR 772
⁴Trinity Western University v Nova Scotia Barristers’ Society (2015) 381 DLR (4th) 296