REALity July, 2018                                                                                                                 Ottawa, ON

In 2012 Trinity Western University (TWU), a Christian university in Langley, British Columbia, announced its plan to open a law school. The Law Societies of British Columbia, Ontario and Nova Scotia, objected to Trinity University’s Law School because it required its students to sign a Covenant that, among other matters, restricts sexual relations to those between a man and woman within a lawful marriage. Signing such a Covenant, these Law Societies claimed, would make prospective law students unsuitable for the practice of law because the Covenant was discriminatory against the LGBTQ community. The Law Societies of the other provinces and territories had no objection to the Covenant.

The Courts of Appeal of both British Columbia and Nova Scotia overturned the decision of their provincial Law Societies to oppose the Christian law school, but the Court of Appeal of Ontario upheld the decision of the Ontario Law Society to reject the law school.

This matter was then appealed to the Supreme Court of Canada.

This case pitched the right to freedom of religion of a Christian university whose right is written into S.2 of the Charter of Rights, against the rights of LGBTQ community whose rights were read into the Charter by the Supreme Court in 1995.

The Supreme Court of Canada faced a dilemma. It had concluded in a previous decision in Trinity Western University v. BC College of Teachers, in 2001 that if a conflict of rights occurs between rights, there must be a balancing of such rights so as to fully respect the importance of both sets of rights. It concluded in that previous case, that the TWU graduates were eligible to become teachers.

The Supreme Court of Canada in its current decision, threw all circumspection and objectivity aside, and concluded in a 7-2 decision that tolerance of LGBTQ was required by TWU, but the LGBTQ community did not have to tolerate Christians’ constitutional rights, which could be overridden. In short, there was no balancing of religious rights. The court determined that LGBTQ’s rights were paramount, based on the remarkably flimsy and unsubstantiated notion that the undefined, vague, and uncertain concepts of Charter “values” and “public interest” required the infringement of religious rights which the statutory administrative body (the Law Society) had properly applied and which was reasonable and proportionate.

In effect, the Supreme Court decided that statutory administrative bodies (such as Law Societies, Human Rights Tribunals and Licensing Commissions, etc.) can control the door to the public square, requiring religious organizations to operate behind the closed doors of their churches, synagogues, temples and mosques. Their beliefs could be found to be against the public interest and Charter values.

Far Reaching Implications

This decision has far reaching implications for faith-based institutions in Canada and their participation in society. From now on, statutory administrative bodies are entitled to infringe on religious entities and their rights and freedoms by restricting their behaviour. Because of this decision, there is little space left in our political culture for religious institutions to fully and equally participate in the public square since their beliefs and moral values whether at work, in education or in politics, are now subject to determinations by administrative bodies. This decision will lead to serious consequences in the future for religious groups in education and in regard to institutions, e.g. Catholic hospitals and other faith-based endeavours.

The court in this case, claimed that the law societies’ decision opposing the proposed law school was a “reasoned and proportionate balancing” of rights because it prevented the risk of significant harm to the LGBTQ community. It argued that the TWU’s Covenant caused harm to the LGBTQ community because it was degrading and disrespectful to their sexual identity. This decision ignores the fact that there are 16 law schools in Canada with over 2400 spaces available, and no one is “forced” to attend the proposed TWU law school. This decision by the Supreme Court also denies pluralism and diversity which is supposed to be the bedrock of our society. The court erroneously claimed that the decision would have only a minor effect on TWU, and would not seriously limit religious freedoms. This is doubtful, indeed.

Dissenting Opinion of the Court

The two dissenting judges in this case, Mr. Justice Russell Brown and Madam Justice Suzanne Coté, pointed out that the purpose of a law society was only to ensure that law graduates were fit to become members of the legal profession i.e. meet the standards of competence and ethical conduct. There were no such concerns present, however, about the fitness of prospective TWU law graduates. The latter were considered unacceptable because of the Covenant. The dissenting judges pointed out that “Tolerance and accommodation of difference serves a public interest and fosters pluralism” and that “In our view, and for several reasons, resorting to Charter values as a counterweight to constitutionalized and judicially defined Charter rights, is a highly questionable practice”.

Judges Deciding Public Policy

This decision has removed any doubt that the public can no longer have confidence in the impartiality and objectivity of the Supreme Court of Canada. The court is not impartial, but arrives at decisions based, not on law or precedent, but on the personal perspectives of the judges. Former Chief Justice Beverley McLachlin admitted as such in the National Post (May 23, 2015) when she stated:

My job is simply to listen to what the parties have to say . . . to think about what’s best for Canadian society on this particular problem that’s before us, and give it my best judgment after listening to also, my eight other colleagues . . .

This raises the question, under what authority do the nine appointed and unaccountable judges, have the jurisdiction to determine “what’s best for Canadian society”? It is the responsibility of Parliament to do so. The Supreme Court of Canada in the TWU decision as well as other previous decisions has usurped this role of Parliament.

The Supreme Court of Canada has reached the apex of its power. It has done so by using the Charter as a tool to manipulate decisions to broaden its jurisdiction until it has now become the final absolute authority in Canada. This has excluded the public from the decision making process. This is not acceptable in a democratic nation.

One of the consequences of the TWU decision is that it has clarified the crisis that exists in regard to the role of the courts under the Charter of Rights.

The Notwithstanding Clause

The Notwithstanding Clause (S.33 of the Charter) permits Parliament or the provincial legislatures to overturn or allow to continue to operate, notwithstanding a court ruling to the contrary. This provision, however, does not apply in the TWU case as there was no “law” overturned by the Supreme Court. The decision was merely an interpretation of rights under the Charter.

Further, there is a flaw in the Notwithstanding Clause in that a Prime Minister, such as Justin Trudeau, who has placed homosexuals under his special patronage protection would, with his majority of seats, not apply the Notwithstanding Clause, even if that provision in the Charter were applicable.

Crisis Created by Charter Interpretation

It is apparent, beyond a shadow of a doubt, that the Supreme Court of Canada no longer interprets and applies the law objectively and even-handedly, but believes its role is to be a social engineer or to change society according to the personal beliefs of the judges, in the best interests of society. Available documents released on the Charter, reveal that Parliament never intended the courts to usurp the role of Parliament, which is now taking place. This has created a crisis. It is necessary that restraints be placed on the judges to restrict their autocratic abuse of power. It is a certainty that the judges themselves will not willingly restrain from exercising this power.

The time has come to consider an amendment to the Charter to restrain the courts, and to restore a deference to Parliament which represents the public’s perspective. This will not be easy to achieve as Trudeau Senior, the creator of the Charter, has ensured that amendments to the Charter will not be readily achievable.

Part V, S.28 of the Charter provides that an amendment to the Charter can occur if authorized by

(1) The Senate and House of Commons; and
(2) 2/3 of the provinces that have in the aggregate of at least 50% of the population.

It will be a long journey to accomplish this, but we must start somewhere. We cannot allow ourselves to be subjected to the tyranny of the appointed judges any longer. This is especially the case when we know that religious based organizations have now been placed in jeopardy by the TWU decision.