Is the Supreme Court's TWU decision Canada's Plessy v. Ferguson?

Canadians will be surprised to hear their country does not actually guarantee fundamental liberties like freedom of speech, freedom of association, and freedom of religion. My country, after all, repatriated its constitution from Great Britain in 1982 and took the opportunity to have Westminster add a Charter of Rights of Freedoms, which certainly seems to guarantee these basic rights.

Canadians are almost universally proud of their Charter, with current Prime Minister Justin Trudeau liberally and unilaterally adding layers of interpretation to it when he pronounces that the Charter guarantees a woman’s right to an abortion. He was speaking in defence of his government’s Summer Job Program that requires an “attestation” from the applicant organization that it agrees with abortion, which is very close to compelled speech. In 1988, Supreme Court of Canada (SCC) did strike down the then Federal abortion regime as arbitrary – but left it to Parliament to try again. It never did. To our PM, this was just a technicality. A majority of Canadians polled support a women’s right to reproductive freedom. There can be little doubt how the SCC would rule. The recent decision of Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 (TWU) proves our PM to be right, with some regrettable echoes back to the US Supreme Court decision of Plessy v. Ferguson, 163 U.S. 537.

For the American reader, and many Canadians who regard our nine Supreme Court judges as our Oracles of Delphi (and thus have little interest in what the Charter actually says), the structural difference between the U.S. Bill of Rights, and the Canadian Charter are important to understand.

Take the First Amendment to the U.S. Constitution. It states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The U.S. Bill of Rights has no caveat. Limits on rights require definitional qualification rather than reliance on overt external factors, such as whether a particular community is unpopular or not. Even inflammatory hate speech is protected speech, as the U.S. Supreme Court held in Brandenburg v. Ohio, unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions,” quite a hurdle.

Now, consider the Canadian Charter:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [emphasis added]

Article 2 sets out the list of “fundamental freedoms,” all of equal significance to the drafters:

Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.

Equality rights get separate treatment in Article 15, but there is nothing to suggest equality will trump fundamental freedoms:

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Canadian Constitution provides the linguistic test by which a court may limit rights and freedoms. The test is whether the limit is “demonstrably justified in a free and democratic society.” The language is largely indeterminate. For example, the word “democracy” has many historical and dictionary meanings, from “mob rule” (for which we can blame the excesses of the Athenian Empire) to a society that is “kind,” as most Canadians and the SCC seem to use the word.

The high court has spent years trying to put meat on the bone, with fancy names like the “Oakes test” or the “Dore/Loyola framework,” but the results have been equally indeterminate. As TWU illustrates, speculation and platitudes can stand in for a serious analysis. Utopian activism (what Americans now commonly refer to as “progressive”) can stand in for considered review of evidence. This places the SCC in the role of mother superior of rights, slapping the wrists of forces unbending to the progressive agenda. In this sense, the nine judges of the SCC function less as oracles and more like alchemists, doubling toil and trouble, as they stir the pot, in search of the elixir for a new society.

The facts in TWU were troubling long before the SCC considered the matter. Trinity Western University is an evangelical Christian school. It is no stretch to suggest that Evangelical Christians are not a popular community in Canada. Like Catholics, they have not bent to the dictates of post modernity.

Canada has no official religious voice in its legislatures. There is no religious party. Politicians who are Christians generally keep it to themselves. The best advice for any religious community in Canada is to stay quiet, stick to platitudes and generally stay out of the way. Trinity Western did not. It sought to add a law school to its religious-based community, a first in the modern era. In 2012, TWU submitted its proposal to the Federation of Law Societies of Canada and approval was granted – subject to the BC law society’s right (the LSBC) to adopt a resolution declaring the proposed law school “not approved” (a veto).

The Trinity West proposal cast a spot light on its belief system beyond what is socially acceptable in Canada. The killer was the Community Covenant Agreement (Covenant) that all current Trinity Western students and faculty must sign. It requires community members to “voluntarily abstain” from a number of actions, including harassment, lying, cheating, plagiarism, and the use or possession of alcohol on campus. It also prohibited “sexual intimacy that violates the sacredness of marriage between a man and a women.”

No Safe Space

In this age of safe spaces, one would have thought a campus where the above was respected would be a very safe space indeed, especially for young women. Canada has had its same-sex marriage debate, and such marriages are now legal. Trinity Western’s Covenant was obstinate as it blessed sexual intimacy for straight married but not gay married couples.

Trinity Western is privately funded and has operated since 1969 under a statutory mandate that it must admit qualified students of “any race, colour or creed.” There was no dispute the Covenant was aimed at ensuring students, even non-Christians, conduct themselves in a manner respectful of the religious object of the school. The Covenant attracted the ire of the LGBTQ community and to the majority of Canadians sympathetic to its cause. The belief itself was regarded as unacceptable in modern Canada.

The LSBC has a limited mandate in accrediting new law schools. As noted in TWU by the two dissenting SCC judges (Cote and Brown), “Under the LSBC’s governing statute [the Legal Profession Act (LPA)], the only proper purpose of a law faculty approval decision is to ensure that individual graduates are fit to become members of the legal profession because they meet minimum standards of competence and ethical concerns.” The LPA, section 3, also refers to the LSBC’s “object and duty” to “uphold the public interest in the administration of justice by … preserving and protecting the rights and freedom of all persons.” Nothing in the LPA gives the LSBC the right to make rules concerning the governance of a law school. The LSBC conceded there were no concerns about the competence of the prospective TWU law students. That should have been the end of the matter.

The Benchers of the LSBC initially planned to take no action. However, the outcry from lawyers in British Columbia against the Covenant put enormous political pressure on the Benchers. They eventually bowed to submitting the question of TWU’s accreditation to a referendum of lawyers in BC, putting Trinity Western community’s religious freedom to a popular vote. The question for members was whether to direct the Benchers to pass a resolution that TWU was “not approved.”

I attended the voting in person in Vancouver on June 10, 2014. The atmosphere was carnival-like, with opponents of the new law school evidently confident in the outcome. The vote was never in doubt with 3210 BC lawyers voting to direct the Benchers to veto the Christian law school, but with 968 (30%) still opposing.

The Benchers were obviously troubled by what to do next. They elected to hold a second mail in referendum on whether they should implement the resolution (one is reminded of Pontius Pilate’s prevarications). The results were 5910 voting to implement and 2,088 (a slightly higher 35%) opposed. The resolution passed on October 31, 2014. Despite the LSBC’s limited mandate, the sole basis for the resolution was the will of the majority.

The case then worked its way up to the SCC. TWU was successful at the BC Court of Appeal, where the court found a “severe” assault on religious freedom balanced against a “minimal” impact on LGBTQ persons. The LSBC appealed. The SCC TWU decision was delivered on June 15, 2018. The majority of Abella, Moldaver, Karakatsanis, Wagner, Gascon JJ., Rowe J. (separate reasons) and the Chief Justice McLaughlin (also in separate reasons), all had no difficulty overturning the BCCA decision and upholding the resolution of the LSBC.

The majority rejected what seemed obvious, that the LSBC had boldly exceeded its mandate and timidly fettered its discretion. The majority used the LSBC’s duty to act in the “public interest” to give it powers nowhere expressly stated in its statutory mandate:

[31] In our view, LPA requires the Benchers to consider the overarching objective of protecting the public interest in determining the requirements for admission to the profession, including whether to approve a particular law school
[34] As the governing body of a self-regulating profession, the LSBC’s determination of the manner in which its broad public interest mandate will best be furthered is entitled to deference. The public interest is a broad concept and what it requires will depend on the particular context.

Despite the fact there are 19 secular law schools in Canada, no religious ones, and no evidence of likely harm to any LGBTQ persons (except morally), the majority noted:

[39] …The LSBC was entitled to be concerned that inequitable barriers on entry to law schools would effectively impose inequitable barriers on entry to the profession and risk decreasing diversity within the bar…

The majority accepted that “an entire law school would be closed off to the vast majority of LGBTQ people…. LGBTQ individuals would have fewer opportunities relative to others. This undermines true equality of access to legal education, and, by extension, the legal profession.” The LSBC was therefore to be commended for “preventing the risk of significant harm to LGBTQ people who attend TWU’s proposed law school.” The majority never explains why 60 new law school spaces at Trinity Western do anything more than add to the total spaces available to prospective law students. Presumably, the 60 new spaces at Trinity Western would be attractive to Christians who may be equally uncomfortable in what to them may be the oppressive, secular, politically-correct atmosphere in Canadian universities. LGBTQ students could access these vacated spots, having no interest in attending an Evangelical Christian law school. The elephant in the room is that students who enjoy and wish to continue to enjoy pre-marital sex, or steal or plagiarize, etc. (a community much larger than the LGBTQ one) would be equally uncomfortable with the Covenant.

The Chief Justice’s reasons are particularly unsettling. The five majority judges considered the impact on religious freedom minimal. Justice Rowe didn’t see any breach of religious freedom at all. The Chief Justice alone among the majority recognized that a “significant” violation of freedom of conscience and religion is occurring here. Her eyes are wide open. She writes: “The decision places a burden on the TWU community’s freedom of religion: (1) by interfering with a religious practice (a learning environment that conforms to its members’ beliefs); (2) by restricting their right to express their beliefs through that practice; and (3) by restricting their ability to associate as required by their beliefs.” She even questions whether barring the new religious law school contributes anything towards diversity, “given its comparatively high tuition fees, and [the question] how many, if any, LGBTQ students will be forced to go to TWU as a school of last resort…”

[…] This is just an excerpt from the February 2021 Issue of Culture Wars magazine. To read the full article, please purchase a digital download of the magazine, or become a subscriber!