Saturday, July 21, 2018

The Supreme Court rules: Discrimination is not a protected religious right

On June 15, 2018 the Supreme Court of Canada published its decisions about the Law Society of British Columbia (LSBC) and the Law Society of Upper Canada (LSUC) refusing to recognize graduates of Trinity Western University's (TWU) proposed law school. Graduates from TWU would not be able to practice law in those provinces. (See my previous essays on TWU's Community Covenant, the Ontario Court of Appeal TWU ruling, an analysis of the issues raised by the case prior to the Supreme Court hearing, and a summary of the arguments made at the Supreme Court.)

Summary of the Rulings

The structure and arguments in both the Law Society of British Columbia (LSBC) v. TWU and TWU v. the Law Society of Upper Canada (LSUC) rulings were substantially the same, though some of the details varied. Together the judgments run to over 250 pages, so any synopsis will inevitably leave out some important details.

In essence, the Court considered the following (P# refers to the paragraph number of the relevant decision):
  1. Under the relevant provincial legislation, were the law societies permitted to consider TWU's Covenant when deciding whether to grant accreditation to its graduates? If not, the law societies must recognize TWU graduates as no other reasons were given to deny accreditation.

    A majority ruled that the "public interest" provisions of the law societies' enabling statutes meant they acted within their mandate. (Two dissenting judges vehemently disagree with this conclusion.)
  2. Given this, were the decisions of the law societies reasonable and proportionate? If not, the Court could overturn them.

    The majority noted that "the law society’s interpretation of the public interest is owed deference" (LSBC, P38), meaning the bar was high to second guess the conclusions reached by the law societies. The Court found no egregious behaviour on the part of the law societies, both in terms of the procedure followed to reach their conclusions and in the quality of their deliberations.
  3. Were Charter rights of TWU students violated? If not, since the decisions of the law societies were reasonable, the case would end there.

    The Court found that the law societies' decisions not to accredit TWU were "a limitation on the right of TWU’s community members to enhance their spiritual development" (LSBC, P75), and thus their right to freedom of religion was infringed.
  4. Is the infringement in this case justifiable?

    The majority decided that yes, the infringement was justified, for the following reasons:

    "LSBC’s decision did not limit religious freedom to a significant extent." (LSBC, P85) 

    "Those who are able to sign the Covenant will be able to apply to 60 more law school seats per year, whereas those 60 seats remain effectively closed to most LGBTQ people." (LSBC, P95)

    In other words, the impact of the law societies' decision on TWU students' religious freedom in minimal, whereas the impact of accrediting TWU would be significant on LGBTQ individuals across the country. 

Analysis of the eight rulings

The decisions were not unanimous. In both cases, five Justices wrote the majority ruling, the Chief Justice provided her own reasons for a concurring opinion, as did Justice Malcolm Rowe. Two Justices wrote a dissenting opinion. Thus there were a total of eight rulings. The logic and arguments were very similar in both cases, however, so below I have merged the reasons for both.

Majority Ruling

The summary above reflects the findings of the five Justices. They determined that the infringement on freedom of religion was minimal because the "decision only interferes with TWU’s ability to operate a law school governed by the mandatory Covenant" and "attending a Christian law school is preferred, not necessary, for prospective TWU law students." (LSUC P38)

LSUC determined "that TWU’s community members cannot impose those religious beliefs on fellow law students" and that its obligation to protect the public interest "mandates access to law schools based on merit and diversity, rather than exclusionary religious practices." (LSUC P41)

The majority was quite concerned about protecting diversity in the legal profession, writing, "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." (LSBC P39) and "A diverse bar is a more competent bar." (LSBC P43)

One item I found potentially troubling in the majority ruling was, "It is unnecessary to determine whether TWU, as an institution, possesses rights under s. 2(a) of the Charter." (LSBC P61) While the Court did not accept TWU's argument that it, as an institution, has freedom of religion, it left the door open for such a finding in the future. I much prefer Rowe's interpretation of religious freedom (see below).

I was delighted to see the the majority explicitly endorsed a principle I have long held, but that is often publicly rejected by many, including several prominent politicians: "that freedom of religion includes freedom from religion." (LSBC P101). Accepting this premise leads inevitably to ruling in favour of the law societies, once the Court acknowledged that "The effect of the mandatory Covenant is to restrict the conduct of others." (LSBC P99)

Chief Justice

The Chief Justice found that, contrary to the majority opinion, the "negative impacts of the LSBC’s denial of accreditation on the religious, expressive and associational rights of the TWU community are not of minor significance." (LSBC, P145) She also found that "LGBTQ students who insist on equal treatment will have less access to law school and hence the practice of law than heterosexual students — heterosexual students can choose from all law schools without discrimination, while one law school, the TWU law school, would only be available to LGBTQ students willing to endure discrimination." (LSBC, P138)

The Law Society of British Columbia decided "the imperative of refusing to condone discrimination and unequal treatment on the basis of sexual orientation outweighed TWU’s claims to freedom of religion." (LSBC P146)

On balance, she "cannot conclude that the decision of the LSBC was unreasonable." (LSBC, P148)

Justice Malcolm Rowe

Justice Rowe, while concurring overall with the majority, differed in his reasons on several salient points. I found myself agreeing with almost everything in his opinions, and hope that his perspective becomes pervasive within the Court in the years to come.

There is an odd convention in our society that whereas most ideas are open to vigorous challenge, if one defends an otherwise ludicrous proposition with the statement, "This is a part of my religious tradition," it becomes an invalid topic for criticism. Thus I was very happy to read (LSBC, P160) that Rowe believes that "The fact that the Covenant is a statement of religious rules and principles does not insulate it from such scrutiny." As the Canadian Secular Alliance states in its policy position on Canada's blasphemy law: "People deserve protection from harm; ideas do not warrant protection from criticism."

Rowe gently chides his colleagues for finding Charter infringements too readily. Doing so "erodes the seriousness of finding Charter violations" and "distorts the proper relationship between the branches of government by unduly expanding the policy making role of the judiciary." (LSBC P192) He notes that "The decision of the LSBC does not interfere with the claimants’ freedom to believe that sexual intimacy outside heterosexual marriage “violates the sacredness of marriage between a man and a woman”" (LSBC P226) and "the LSBC does not interfere with the claimants’ ability to act in accordance with their beliefs about sexual intimacy." Thus he differs from the majority and finds "the alleged infringement does not fall within the scope of freedom of religion." (LSBC P210)

One of the most significant statements by Rowe (LSBC P219) is that "religious freedom is premised on the personal volition of individual believers. [...] I would decline to find that TWU, as an institution, possesses rights under s. 2(a)." "While s. 2(a) recognizes the communal aspects of religion, its protection remains predicated on the exercise of free will by individuals". (LSBC P220)

This is exactly the correct stance to take, and I am glad at least one Justice was willing to commit to it, despite the majority declining to comment.

The crux of Rowe's reasoning, however, is that "TWU, by virtue of its enabling statute, literally is for everyone" (LSBC P241) and therefore "its admissions policy [can]not be restricted to Christian students." (LSBC P240) But TWU students "seek the protection of s. 2(a) for their effort to ensure that all students attending TWU abide by these beliefs — regardless of whether they personally share them." (LSBC P237) But Rowe "can find no decision by this Court to the effect that s. 2(a) protects such a right to impose adherence to religious practices on those who do not voluntarily adhere thereto." (LSBC 242)

Rowe concludes that the Charter "does not protect measures by which an individual or a faith community seeks to impose adherence to their religious beliefs or practices on others who do not share their underlying faith." (LSBC P251) And he quotes the submission made by the Canadian Secular Alliance, writing "I agree that “a right designed to shield individuals from religious coercion cannot be used as a sword to coerce [conformity to] religious practice”". (LSBC P251) How flattering to have part of our submission incorporated into the published opinion of a Supreme Court Justice!

Dissent

I found much of the dissenting rulings troubling. Referring to evangelical Christians, Justices Côté and Brown claim in their second paragraph that LSBC "has effectively denied that access to a segment of Canadian society". (LSUC P261) This is factually incorrect. Evangelical Christians can and do attend law schools across the country, and many (perhaps all) Canadian law schools have Christian student groups in which they can participate. The decision not to recognize TWU graduates in no way prevents an evangelical Christian from getting a legal education or pursuing a law career in Canada.

"The LSBC’s decision is a profound interference with religious freedom, and is contrary to the state’s duty of religious neutrality. It is substantively coercive in nature." (LSBC summary) It is disturbing to have Supreme Court Justices arguing that any action preventing or mitigating coercive practices is inherently coercive, even if it is a minority perspective. If we accept this premise, then (according to Côté and Brown) government neutrality in religious affairs mandates an acceptance of religious bigotry. I reject this view.

The dissenting judges are adamant that "The only proper purpose of a Law Society of Upper Canada (“LSUC”) accreditation decision is to ensure that individual applicants who are graduates of the applicant institution are fit for licensing." (LSUC P57) They state this premise, in various forms, many times across the two rulings:

  • "Law school accreditation, properly understood, only acts as a proxy for ascertaining whether graduates from that school are presumptively fit for licensing." (LSUC P67) 
  • "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" (LSBC P267)
  • "the only proper purpose of an approval decision by the LSBC is to ensure that individual licensing applicants are fit for licensing." (LSBC P273)
  • "It is readily apparent that the approval of law faculties is tied to the purpose of assessing the fitness of an individual applicant for licensing." LSBC P280)
  • "The LSBC’s object, duties and powers are, in short, limited to regulating the legal profession, starting at (but not before) the licensing process" (LSBC P284) 
  • LSBC's "statutory mandate empowers it to control the doorway to the profession, not to decide who knocks on the door." (LSBC P290)
  • "justification in this case requires evidence of a detrimental impact in the form of the unfitness of future graduates of TWU’s proposed law school’s to practise law." (LSBC 321)
  • "the only proper purpose of a law faculty approval decision is to ensure the fitness of individual graduates" (LSBC 341)
  • "Whether or not law schools have themselves selected the “best of the best” has no bearing on the LSBC’s task of determining who is fit to practise law in British Columbia." (LSBC P289)

The other Justices are clear that the delineation of the law societies' authority rests, barring exceptional circumstances, with the law societies themselves: the majority writes "the LSBC’s determination of the manner in which its broad public interest mandate will best be furthered is entitled to deference" (LSBC P34), the Chief Justice states "Where legislatures delegate regulation of the legal profession to a law society, the law society’s interpretation of the public interest is owed deference." (LSBC P110), and Justice Rowe concurs that "As this Court has affirmed on numerous occasions, deference is called for when courts review the decisions of law societies as they self regulate in the public interest". (LSBC P155) Yet Côté and Brown flatly assert that "approving TWU’s proposed law school was not against the public interest", (LSBC P323) overruling LSBC and contradicting the other seven Justices and their cited precedents.

The implication is that pubic interest, according to Côté and Brown, is defined by competent graduates, with no weight given to diversity, excellence, or exclusion of non-favoured groups. Presumably, a religiously based law school that admitted only heterosexual Christian white men would be fine with these two Justices so long as each individual graduate was minimally capable at the practice of law.

There were aspects of the dissenting opinion that I agreed with. It succinctly and accurately states the secularist position in the LSBC summary: "State neutrality requires that the state neither favour nor hinder any particular belief, and the same holds true for non-belief." Côté and Brown also defend this premise: "state neutrality must prevail." They are correct in noting "secularism connotes pluralism and respect for diversity", "guarantees an inclusive public square by neither privileging nor silencing any single view", (LSBC 332), "the secular state is a neutral state" (LSBC 332) and reiterate that "state neutrality must prevail." (LSBC 333)

Yet within a single paragraph (LSUC P81), Côté and Brown take a reasonable premise - "the public interest in fostering a liberal, pluralist society is served by accommodating religious freedom" - and use it to leap to an untenable conclusion: "The unequal access resulting from the Covenant is a function not of condonation of discrimination, but of accommodating religious freedom, which freedom allows religious communities to flourish and thereby promotes diversity and pluralism in the public life of our communities." Côté and Brown use the rhetoric of secularism to arrive at distinctly anti-secular conclusions.

Côté and Brown employ a similar rhetorical device elsewhere: "Tolerance and accommodation of difference serve the public interest and foster pluralism. Acceptance by the LSBC of the unequal access effected by the Covenant would signify the accommodation of difference and of the TWU community’s right to religious freedom, and not condonation of discrimination against LGBTQ persons." (LSBC P269) This is exactly backwards - religious freedom is so important, imply the judges, that the impact on the LGBT students who are discriminated against is irrelevant. The majority considered, and rightly rejected, this argument.

The dissenting judges repeatedly use the language of secularism to condone discrimination (LSBC, P268): "The decision not to approve TWU’s proposed law faculty because of the restrictions contained in the Covenant [...] is a profound interference with religious freedom, and is contrary to the state’s duty of religious neutrality." Essentially, these Justices argue, any and all restrictions placed on LGBT students by TWU are fine in the service of defending the intolerance of evangelical Christians.

If this argument were to be found persuasive, a future religiously based law school could restrict access to right-handed people only, citing scripture (e.g., Genesis 48:13-18, Galatians 2:9). (Or, to follow TWU's operating model, left-handed people would be welcome to attend, so long as they performed all activities, on campus and off, in a right-handed manner.) The dissenting judges repeatedly invoke the concepts of neutrality, pluralism, and respect, which I support. These words clearly do not mean the same things to them as they do to me.

The two dissenting judges invert the intent the Canadian Secular Alliance's own metaphor (without a citation) to defend their position: "Equating recognition of a private actor as condonation of its beliefs turns the protective shield of the Charter into a sword." (LSUC P75) They use similar language in LSBC P338: "Equating approval to condonation turns the protective shield of the Charter into a sword by effectively imposing Charter obligations on private actors." I do not understand how Côté and Brown can observe TWU's blatantly discriminatory behaviour alongside LSBC's and LSUC's attempts to mitigate its impact, and conclude that the TWU community is the injured party.

Côté and Brown also engage in misdirection, which is worrying behaviour for Supreme Court Justices. They accurately state that LSBC's governing statute "does not grant the LSBC authority to regulate law schools." (LSBC P282). However, that's not what LSBC is doing. As the majority explicitly stated, "That the LSBC considered TWU’s admissions policies in deciding whether to approve its proposed law school does not amount to the LSBC regulating law schools".  (LSBC P45) It is unclear why Côté and Brown ignored their peers on this matter.

Like the majority ruling, the dissenting judges do not state whether institutions have religious rights: "it may not be necessary to determine whether TWU, qua institution, enjoys a right to religious freedom in its own right". (LSBC P315) They are clearly sympathetic to such a view, however - the section in which this sentence appears is entitled, "The LSBC Benchers’ Decision Is an Infringement of TWU’s Section 2(a) Charter Rights", which clearly implies it is the school, and not its current or prospective students, that have rights. They hint as this again in LSBC P324 when they condemn this "highly intrusive conduct by a state actor into the religious practices of the TWU community." I cannot determine whether, in this sentence, Côté and Brown are defending the rights of individuals, a community, or an institution.

In their opinion only "evidence of a detrimental impact in the form of the unfitness of future graduates of TWU’s proposed law school’s to practise law" (LSBC P321) could justify LSBC not accrediting TWU's law school, which is a very narrow view. But no one - not LSBC, nor LSUC, nor any of the 19 interveners - claimed that future graduates would be unfit to practise law. The Justices are surely aware of this, and thus are here making a token effort to appear reasonable by providing the grounds on which they might have ruled differently - knowing full well that no one is making such an argument. This strikes me as disingenuous - unbecoming behaviour from two Supreme Court judges.

The problem is that TWU's main argument - studying in an enforced evangelical Christian environment is simply an aspect of freedom of religion - is belied by the fact that TWU itself affirms that non-Christians are welcome to attend TWU and vociferously dispute any and all Christian theological, ethical, and religious precepts. That people experiencing sexual intimacy with their spouses in the privacy of their homes threatens the fragile fabric of the TWU Christian community, while a TWU student loudly proclaiming that Vishnu or Jehovah or Allah is a true Deity, and that Jesus is a myth, is entirely permissible, highlights to me that the Covenant is about enforcing parochial taboos and has little to do with religious rights.

Freedom of religion does not include the right to compel or forbid the actions of others.

What happens next?

TWU has decided to postpone the opening of its law school as it reviews the decision. As the objections of the two law societies focused on the mandatory nature of TWU's Community Covenant (which was upheld by all seven judges ruling in their favour), as I see it Trinity Western has three options from this point:

  1. Do not open a law school.
  2. Remove the clauses forbidding sexual intimacy between same-sex spouses from the Community Covenant.
  3. Make signing the Community Covenant optional instead of mandatory.

It is important to note that no one objected to the founding of a Christian law school per se. The issue is the dual claim of TWU being open to all comers - heterosexuals and homosexuals alike - while enforcing a mandatory Community Covenant that denies basic freedoms to gay married couples that are granted to straight married couples.

How Trinity Western proceeds from here is up to them. I will be watching the school in the months to come to see what decision they make, and why.

Monday, June 04, 2018

Canada is repealing its blasphemy law

I wrote a short article for the June 2018 edition of Critical Links, the newsletter of the Centre for Inquiry Canada. Enjoy.

Canada is repealing its blasphemy law

Governments sometimes pass laws that violate their country's constitution. One purpose of an independent judiciary is to identify and strike down such laws when they are challenged. Since Canada adopted the Charter of Rights and Freedoms in 1982, many previously valid laws have been found to be contrary to Canada's constitution. When the courts strike down a law, it has no longer has any legal force, but it remains on the books until such time as Parliament formally repeals it. Thus "zombie laws" accumulate in Canada's Criminal Code until a "cleanup" bill removes them.

In 2016, an Alberta judge, in his decision to convict a man of murder, "relied on section 230 of the Criminal Code, which was declared unconstitutional in 1990 case R. v. Martineau." This embarrassed the federal government, and in response Justice Minister Judy Wilson-Raybould released a statement she had instructed "officials in the Department of Justice to conduct a review of Criminal Code provisions found to be unconstitutional, with a view to updating the Criminal Code to reflect these decisions." 

A broad mandate from the Justice Minister to update the Criminal Code presented a rare opportunity to make the case that section 296, Blasphemous Libel, should be removed as part of this modernization effort. Members of three prominent Canadian organizations dedicated to freedom of speech and conscience - Centre for Inquiry CanadaCanadian Secular Alliance, and Humanist Canada - took the opportunity to meet with the senior bureaucrats leading this review in December 2016. 

We highlighted several reasons why Section 296 should be repealed. In short, we argued:
  • Canada's Blasphemous Libel law, while not tested by the courts, would  almost certainly be found to be unconstitutional.
  • Blasphemy laws are an indefensible infringement on freedom of speech in a modern democratic nation. 
  • The law is demonstrably obsolete, It was last invoked in 1980 in an attempt to prevent a cinema from showing Monty Python's "Life of Brian", and the last conviction was over eight decades ago.
  • Authoritarian states use Canada's Section 296 as moral cover to defend their own blasphemy laws.  
  • Human rights activists around the world have called for Canada to repeal its blasphemy law to strengthen their campaigns for freedom of speech in their own countries.
(The Canadian Secular Alliance has a brief policy position on blasphemy that makes a compelling case for its repeal.)

On June 6, 2017, the government introduced bill C-51, an omnibus bill that repeals 39 sections and subsections of the Criminal Code (including blasphemous libel), as well as modifying several sections pertaining to admissibility of evidence in sexual assault cases. In November 2017, Greg Oliver, President of the Canadian Secular Alliance, testified before the Standing Committee on Justice and Human Rights to affirm support for repealing Section 296. 

Bill C-51 has passed all three readings in the House of Commons, and is currently (as of the end of May 2018) in committee with the Senate, having passed the first two readings there. Based on the speeches made at the second reading in the Senate, repealing Canada's blasphemous libel law is not contentious. Careful attention is being paid to updating evidence admissibility in sexual assault cases, which is entirely appropriate.

Though it cannot be known for certain whether blasphemous libel would have been included in bill C-51 without the intervention of Canada's foremost freethought organizations, I am confident that the meeting with Justice Department officials raised the profile of section 296 while they were crafting this legislation. 

Though one cannot predict when a bill in committee will be presented to the Senate for a third reading, there is no reason to expect that bill C-51 will not become law in due course. When it receives royal assent, blasphemous libel will no longer be a crime in Canada. 

Chill, but do not yet uncork, your favourite bottle of Champagne. 

Friday, December 29, 2017

Trinity Western University at the Supreme Court of Canada

Earlier this month Trinity Western University (TWU) defended its mandatory, discriminatory Community Covenant before the Supreme Court of Canada. I am delighted I had the opportunity to witness the proceedings. I was surprised how few of the interactions were lost on me, given I have no legal knowledge or training.

In addition to the three primary parties (TWU, the Law Society of British Columbia (LSBC) and the Law Society of Upper Canada (LSUC)), there were 19 interveners, of which the Canadian Secular Alliance was one. The summary below is based on extensive notes I took during the two days of hearings. I have condensed the arguments but have maintained their fidelity to the best of my ability. They are grouped thematically below, rather than presented in strict chronological order.

Trinity Western University


From the outset, TWU framed the case as one of discrimination against evangelical Christians. A religious community must have the right to define itself, which includes religiously defined codes of conduct. As a private sectarian university, the Charter does not apply to TWU. Given that a legal finding of discrimination must be connected to a law, and nothing in the Covenant is contrary to any law, how can TWU be guilty of discrimination?

The one question to be resolved, TWU argued, is whether graduates of TWU's proposed law school would meet the qualifications of the bar. Since none of the parties in the appeal claim TWU graduates would be unqualified, the answer is clear.

Some Justices challenged the notion that the case was only about the quality of graduates. The Covenant is mandatory for all students, so homosexuals must either hide their orientation while attending TWU (with all the damage such a choice would entail) or not attend. So the question becomes, to what extent can religious freedom be used to justify harm to others in society?

One Justice proposed a hypothetical male-only law school, where barring females was based on sincere religious beliefs. Other judges had difficulty accepting the notion that law societies should be forced to accept its graduates.

The second major tack taken by TWU was that the law societies didn't have the legal authority to deny TWU accreditation, for four reasons:
  1. The law societies agreed to a federated model, and thus are bound by those terms. When Trinity Western University passed all requirements demanded by this model, provincial law societies were legally bound to also accept its graduates as lawyers. No one has suggested graduates of TWU would be anything other than fine upstanding professional lawyers.
  2. Though the law societies are mandated to serve the "public interest", in the legislation this is a subordinate clause and cannot stand on its own. Thus it cannot serve as the sole justification for denying recognition to TWU graduates. 
  3. The Law Society of Upper Canada's decision not to recognize TWU graduates was the result of a vote of its members, so did not come with an official rationale. But by looking at the speeches made prior to the vote, it is clear they did not properly consider reasonable accommodation of religious beliefs, as previous Supreme Court rulings demand. Therefore the result must be set aside, and TWU graduates must be allowed to practice in Ontario. (The Justices challenged only small parts of this argument, but did not seem convinced. They noted the Superior Court of Ontario decision examined the process in considerable detail, and found it to be fair and implemented in an unbiased manner.)
  4. Denying accreditation to TWU violates the rights of future graduates. Granting accreditation to TWU violates no one's rights. Therefore it is clear that the law societies erred. 
There was considerable back and forth between the judges and TWU on the extent to which law societies can give a broad interpretation to the "public interest" aspect of their mandate. TWU argued that the public interest is defined in the legislation, and additional factors cannot be arbitrarily added. The Justices challenged this on several levels. They sought clarification several times on the rationale for why the law societies do not have the authority to give broad meaning to "public interest". The TWU lawyer had to agree that if a law school had a policy - like Bob Jones University in the United States - that banned interracial couples, law societies could say nothing on the matter (though it wasn't the issue before the court).

The function of law societies, TWU claimed, is to determine who is admitted to the bar. Their authority starts with graduates. The law societies have no say over TWU or its law school. TWU's Covenant is entirely lawful, so it cannot be a justification for provincial law societies denying accreditation. The only valid reason not to accredit TWU's law school would be if doing so would harm the profession. There is no evidence of harm, for example, from existing TWU teachers college graduates behaving badly in schools across Canada. The religious do not have a positive right to go to a sectarian law school, but they do have the right not to have that option taken away from them.

TWU made a few arguments that were rejected outright.

TWU claimed that LGBT students argued they are merely "hurt" by the Covenant, which is significantly outweighed by an actual breach of the Charter right of freedom of religion. The Justices questioned the contention that barring a married couple from sexual intimacy for three years is equivalent to hurt feelings.

The judges were unimpressed with the argument that for every Christian who goes to TWU, one seat is available at another institution for LGBT students.

All unmarried students are treated equally, TWU pointed out, and the only distinction between straight and LGBT couples is within marriage, so the number of people affected by the Covenant was very small. Numbers matter, and with only 60 seats out of 2500, TWU would represent less than 2.5% of Canadian law students. One judge immediately asked, "What if only a small number of blacks were excluded? Do small numbers mean it's not important?" Another answered, "One is too many." TWU's attempt to pivot the discussion to respecting religious minorities was met with a withering response: "To the extent it doesn't harm other values. What is the harm to the TWU community in having some TWU law school students engage in other sexual practices? Don't drink, don't slander, defend academic integrity, prohibitions on sexual conduct - one of these is not like the others. One of these is protected by the Charter."

Law Society of Upper Canada 


The Law Society of Upper Canada turned the tables on TWU by claiming that imposing evangelical Christian practices on others is the only infringement to be considered in this case. TWU's admissions policy, through the mandatory nature of the Covenant, effectively imposes religious beliefs on others, or forces them to renege their identity. The Covenant demands that graduates be ambassadors of TWU - and how is that possible for a Jew or atheist?

LSUC acknowledged that as a private university, TWU does not have to follow the Charter, and that it is exempt from human rights legislation in British Columbia. However, LSUC is bound by the Charter's anti-discrimination provisions; it cannot outsource discrimination to a third party and remain in compliance with its Charter obligations. Accrediting TWU would effectively obstruct access to the legal profession through discrimination. The judges were sympathetic to these "laudable goals", but questioned whether LSUC exceeded the considerable powers granted to it via legislation, and challenged LSUC on its broad interpretation of "public interest".

The judges asked LSUC why they broke with the federated model of accreditation. A graduate from TWU might be talented and become a great contributor to the legal profession, the judges noted, but would have no path to practice law in BC and Ontario if the decisions of the law societies stood. LSUC countered that it might develop a procedure whereby individuals could apply to LSUC for accreditation. It acknowledged that no such process currently exists, but that its lack couldn't be held against it as no one had asked it to create one.

Law Society of British Columbia


LSBC argued that this issue cuts across the country, and affects the administration of justice nationwide. There is therefore a need for a consistent answer to apply across the country - having different approaches in different jurisdictions would be problematic.

LSBC agreed that its decision does constitute an infringement of religious freedom under the Charter; however, the LSBC decision has no effect on anyone's ability to hold, practice, or express their beliefs. When compared to the enormous impact of perpetuating the discrimination and stereotyping that the LGBT community has suffered, any infringement on TWU graduates is minimal.

Interveners


Several interveners emphasized that accreditation does not amount to endorsement. That is, having the law societies accredit TWU does not mean that they necessarily approve of every policy of the school, including the Covenant. Nursing homes, soup kitchens, and even corporations all need government regulation or approval or licenses, the granting of which does not imply governmental approval of their views. To claim otherwise is to put every form of government speech - from the registration of trademarks and copyrights to the issuing of drivers licenses - subject to judicial review.

Other interveners focused on how we resolve disputes in society. A pluralistic society is about celebrating differences and accommodating minorities (such as evangelical Christians). If we subject ourselves to the tyranny of the majority, we would lose our treasured Canadian mosaic. Law societies do not have the power to force TWU to comply with their beliefs about same sex marriage. We can disagree about what is moral and still live in peace.  The Court has an opportunity to destroy or affirm pluralism - "If ever there was a time the Court needed to protect religious minorities, that time is now."

One intervener claimed that TWU was the victim of discrimination, not members of the LGBT community. A law school exclusively for women, or reserving seats in a law school in Northern Ontario for aboriginal students, would be protected by section 15 of the Charter (equal protection under the law), whereas a law school restricting the number of black students would be forbidden. Rejecting TWU is analogous to rejecting a law school with dedicated seats for female or aboriginal students.

Three LGBT groups focused on the significant harms resulting from institutionally sanctioned homophobia in the form of the mandatory Covenant: social exclusion, harassment, abuse, and violence. Avoiding these repercussions by hiding who you are is an unacceptable cost; "separate but equal" law schools is no answer. The judges were sharply critical of some of these groups for criticizing lower court decisions and focusing on points of fact instead of law.

The West Coast League disparaged the discredited separate but equal doctrine, stating that equality is not a numbers game - it doesn't matter if one or two hundred seats in the country are awarded on a discriminatory basis. The League also noted that the Covenant implicitly includes a prohibition on abortion. Dignity and the right to make fundamental personal decisions must be incorporated into the analysis.

Another intervener argued that the public interest demands a legal profession that is diverse and inclusive. One major problem with the Covenant is that it is asymmetrical - all those who sign the Covenant could go elsewhere, but those that can't sign in good faith are barred from TWU.

The Canadian Barristers Association claimed that TWU has already been recognized and accommodated, including a special provision in British Columbia's human rights legislation that permits it to engage in exclusionary, discriminatory behaviour that would otherwise be prohibited. But TWU wants more: tangible additional support for its law school through accreditation. Canada can tolerate the views held by TWU, but should not support them. The government has a strong interest in limiting discrimination against LGBT community.

The Canadian Civil Liberties Association added the dimension of privacy to the deliberation, quoting former Prime Minister Pierre Trudeau: "The state has no place in the bedrooms of the nation." The CCLA made two additional points. 1) Reporting on misconduct is encouraged during one's tenure at TWU. 2) Given the university's stated mission to have students commit to a future Christian lifestyle, the terms of admission to TWU clearly apply post-graduation as well.

Two interveners gave different perspectives on secularism. The Canadian Secular Alliance noted TWU is open to students of all faiths and those with none, who are able to hold and express beliefs contrary to the teachings of evangelical Christianity (including about same sex marriage). As the Covenant forces the minority of students who are not evangelical Christians to nonetheless obey its strictures, TWU clearly meets the definition of religious coercion. The Charter protects the freedom to hold and manifest sincerely held beliefs, but not to require others to do so. The Faith and Freedom Alliance, in contrast, argued that secularism entails respect for religious differences, not extinguishing them. Prioritizing rights - such as placing equality or non-discrimination above religious freedom - is not good for democracy. The state, through the provincial law societies, should be neutral intermediaries. Denying accreditation sends a message that religious beliefs are not welcome in the public square, which could lead to religious suppression.

The United Church of Canada argued that humans rights are reserved for humans, not organizations or corporations. Religious beliefs in general are almost unlimited, and practices must be restricted if they harm others. Compelled ideological conformity is a line that should not be crossed. The state does not need to protect people from exposure to different views.

The Advocates Society argued that the statutory mandate of the law societies, human rights legislation, and Charter considerations all prohibit provincial law societies from accrediting TWU. Merit should determine who gets into law school; who one sleeps with should not.

Closing Arguments


The Law Society of Upper Canada argued that it would be prohibited from having a Covenant like TWU's, and cannot look the other way when others violate equality rights. Evangelical Christians have rights, but the law society cannot ignore TWU's discriminatory policies. LSUC was entitled to conclude that its decision was an example of minimal impairment and proportionate balancing.

TWU's closing submission noted that the only way for an individual to practice law is to graduate from an accredited institution. TWU is a voluntary religious like-minded community, and is not intended for those with fundamentally different views. TWU is not for everyone, but on the other hand no one is forced to attend.

The last word of the proceedings was given to the Law Society of British Columbia. It argued that this case was not about LSBC condoning, endorsing, or approving discrimination in TWU's admission policy; LSBC simply applied its mandate, acting in the public interest, balancing competing rights in a proportionate manner. Its final request was for the Court to produce a judgment that would apply across the country, obviating the need for special admission procedures in other jurisdictions.

Wednesday, November 29, 2017

The Canadian Secular Alliance heads to the Supreme Court of Canada

Later this week the Supreme Court of Canada will hear a case about whether the law societies of Ontario and British Columbia can prevent graduates of Trinity Western University's proposed law school from practicing law in their provinces.

It is no surprise that this case has generated considerable interest and publicity as it has wound its way through three provincial court systems, given the issues at hand:
  • The rights and responsibilities of public vs. private educational institutions
  • The collision of two fundamental Charter rights: freedom of religion vs. freedom from discrimination
  • Institutional autonomy vs. institutional overreach
  • Personal freedom of choice vs. communal adherence to religious standards
In addition to the primary parties of Trinity Western University and the Law Societies of Upper Canada (Ontario) and British Columbia, there are 19 interveners, ranging from religious groups (Christian Legal Fellowship, Canadian Conference of Catholic Bishops, World Sikh Organization of Canada, among others), legal institutions (Lawyer's Right Watch Canada, International Coalition of Professors of Law, Canadian Bar Association, among others), minority rights activists (BC LGBTQ Coalition, Egale Canada Human Rights Trust, West Coast Women's Legal Education and Action Fund), and secular humanist organizations (British Columbia Humanist Association, Canadian Secular Alliance). 

As a member of the Canadian Secular Alliance, I will have the honour to witness the proceedings in Ottawa at the Supreme Court on November 30 and December 1. The last time the CSA was an intervener at the Supreme Court of Canada, we won a resounding victory when the judgement declared that opening municipal council meetings with a prayer was a violation of Canada's secular principles. I am less optimistic that secular principles will win the day this time.

Primarily, I'm not sure which issues the Justices will consider central to the case. At its core, this case is about whether provincial law societies are permitted to deny recognition to graduates of a law school duly accredited by the provincial government. Other issues, including Trinity Western University's Covenant, religious freedom, and homophobia, are tangential - yet are the focus of most of the Factums from the nineteen interveners.

Ontario's Court of Appeal did not address Charter issues of freedom of religion or protection from discrimination (please read my analysis of that decision). In ruling in favour of the Law Society of Upper Canada (LSUC), the Court of Appeal examined the process LSUC followed to come to its decision, and having found it fair, let the decision stand. The Court of Appeal in British Columbia and Nova Scotia considered religious freedom germane, and both ruled in favour of Trinity Western University.

I find it unlikely that the Supreme Court would agree to hear this case only to limit its ruling to procedural affairs; therefore I expect the Court to rule more broadly on at least one of the other issues related to this case.

Perhaps the Justices will focus on institutional autonomy, determining that organizations have considerable freedom to restrict the activities of its (voluntary) membership. By this reasoning, the Court might decide that TWU can claim the right to enforce the terms of its Covenant, and similarly law societies can determine who they admit to the Bar in their province. This has the merit of internal consistency, though I suspect few would be happy with such a ruling because it a) sidesteps the most controversial aspects of the case, and b) sets a precedent whereby organizations are able, under certain conditions, to explicitly discriminate against target groups.

Public universities are immune to Charter challenges in order to protect freedom of inquiry; it's not clear to me whether this also applies to private universities such as TWU. If so, many of the arguments from those opposing TWU (which rest on the explicitly discriminatory nature of the mandatory Covenant) may be moot.

The Court may stray from general principles and rule on the specifics of the case. The Covenant, for example, bars sexual activity between unmarried couples (and between same sex couples regardless of marital status) both on campus and off. It is possible the Supreme Court could rule that restricting legal activities between consenting adults in a private residence off campus is an unjustifiable extension of institutional authority, but I have a hard time connecting such a finding to whether law societies across Canada are obligated to recognize graduates from provincially accredited law schools.

The Canadian Secular Alliance will argue, in part, that freedom of religion is not a relevant argument to defend TWU's Covenant. There is nothing in Christian dogma, scripture, theology, or tradition that mandates the teaching of law in an environment in keeping with Christian morality. One's religious freedom is not infringed if a fellow student chooses to engage in Biblically condemned activities.

And while I agree with this argument (and others) from the CSA, I am concerned about its relevance. The Supreme Court has been (wisely) hesitant to wade into what is and is not required by any religious tradition. The case is about the unprecedented decision by some provincial law societies not to recognize graduates of an accredited Canadian law school.

I can see two arguments that could persuade the Supreme Court to rule in favour of Trinity Western.

  1. It is not for law societies to determine which law schools have a set of policies that are deemed to be socially acceptable. This is the responsibility of the provincial government, which in this case has accredited Trinity Western University's law school through the BC Ministry of Advanced Education. While the university in question may have questionable or objectionable policies, any large institution will have taken a position on controversial topics about which reasonable people may vehemently disagree. To rule in favour of the Law Societies of Upper Canada and British Columbia would permit any organization to deny privileges to those coming from institutions with any policy that a reasonable person might find objectionable. This would lead to an untenable situation; thus the Court rules for TWU.
  2. Regardless of the merits of criticism of TWU's Covenant (or other policies and practices), it is not the law students and graduates who created it and therefore should not be the ones who bear the brunt of protest. The retaliatory measures taken by provincial law societies is a form of collective punishment against those who bear no moral nor legal responsibility for a potentially odious policy, and therefore the decision of Ontario and BC not to recognize TWU law graduates is deemed unconstitutional.
Neither of these arguments rest on religious freedom. A decision that determined that the institution of TWU had religious rights that trumped the rights of individual students would be extremely worrying. Fortunately, this would be a significant change of direction for the Court to take so I deem it unlikely.

The best decision, in my view, would be one that affirmed personal freedoms and secular principles. TWU can teach law from an evangelical Christian perspective, so long as it continues to meet the (presumably) stringent provincial curriculum requirements. The mandatory nature of the Community Covenant would be found to be an unreasonable infringement on the private life of students, and signing it could no longer be a prerequisite to attend the school. Those from outside the evangelical community, including those of other faiths (and none), would continue to be welcome to both attend the school and espouse their perspective. Gay students would not be forced (nor pressured) to remain chaste during their tenure at TWU.

A decision along these lines is possible, if unlikely.

Nonetheless, I am excited to visit the Supreme Court of Canada for the first time. I look forward to hearing the arguments from the many interveners. And I hope that, when the Court publishes its decision in 2018, it will uphold the secular tradition that has served Canada well.

Thursday, July 21, 2016

Ontario Court of Appeal rules that TWU graduates cannot practice law in Ontario

Trinity Western University (TWU) requires all its students to sign a Community Covenant Agreement, which demands (among other things) that sexual relations be restricted to heterosexual married couples. Violators of the Covenant are subject to academic censure, up to and including expulsion. TWU is planning to open a law school in September 2018.

The Law Society of Upper Canada's reaction to this blatantly discriminatory policy, after consulting with its members, was to deny TWU graduates from practising law in Ontario. Last month, the Ontario Court of Appeal ruled the Law Society of Upper Canada was within its rights to do so.

While I am pleased with the overall decision, some of its reasoning leaves me discomfited.

First, the good.

The Court states unequivocally (P115) “that TWU’s admission policy, viewed in conjunction with the Community Covenant, discriminates against the LGBTQ community on the basis of sexual orientation contrary to s. 15 of the Charter and s. 6 of the HRC.”

Later on, the Court acknowledges again the harm that TWU's Covenant does (P138): “LSUC’s decision not to accredit TWU does not prevent the practice of a religious belief itself; rather it denies a public benefit because of the impact of that religious belief on others – members of the LGBTQ community.”

The Court looks at the procedure LSUC followed in making its decision (P122-128) and finds that it was fair. Therefore, (P132) “There is nothing wrong with a law society, acting within its jurisdiction, scrutinizing the admission process of a law school in deciding whether to accredit the law school. […] LSUC could take account of the fact that all law schools currently accredited by it provide equal access to all applicants in their admissions processes. An accredited TWU would be an exception.” This is the key paragraph in the ruling that is generally applicable.

Here the judge a) implicitly acknowledges the discriminatory nature of the Covenant against homosexuals, and b) states that law societies are within their rights to take that into account when determining whether to accredit a law school. It is this finding (which is essentially repeated in P135) that I hope sways the justices at the inevitable Supreme Court appeal. 

Other aspects of the ruling I found to be troubling.

The Canadian Secular Alliance was an intervener in the case, and submitted a factum in which the key arguments were:
  • The Charter exists to protect people from discrimination. It cannot be used as a justification to discriminate against others.
  • This case isn't about studying law in an evangelical Christian environment. It's about enforcing an openly discriminatory policy that violates the Charter rights of students, and claiming protection for this bigotry under the aegis of religious freedom.
  • Nothing in Christianity (doctrine, theology, tradition) demands studying law in a Christian environment or strictly from a Christian perspective, so Charter religious freedom protections are not applicable.
  • LSUC's decision is not an infringement of religious freedom. No TWU student is forced to alter their beliefs about what constitutes healthy sexuality. No one is being silenced. To claim that the mere presence of a non-celibate homosexual in the same law class as an evangelical Christian is an infringement of their religious practice is unreasonable.

 Regrettably, the Court rejected the first point above and ignored the others.

The Court found that institutions, not just individuals, have Charter rights. Thus the religious rights of TWU (not its students or faculty) must be balanced against potential harms against minority groups. In the words of the Court (P94):
“individuals [...] necessarily require an entity to both establish a community within which members can study law from an evangelical Christian perspective and to set and enforce the religious practices to be followed by the law school community. It is only through TWU that the claim to operate a degree-granting accredited law school from an evangelical Christian perspective can possibly be advanced. In this way, TWU acts as the vehicle through which the religious freedoms of its individual members, including teachers, students, and staff, can be manifested, pursued and achieved.” [emphasis added]
Thus, the Court concludes that TWU’s religious freedom not only exists, but is infringed upon by the LSUC decision (P99). “The question remains, however, whether the LSUC’s decision not to accredit TWU because of the existence of the Covenant would interfere with TWU’s religious freedom in a manner that is more than trivial or insubstantial. I accept that it would.”

The Court also finds, in P101, that an individual’s “right to freedom of religion under s. 2(a) of the Charter” was infringed by LSUC’s decision not to recognize TWU graduates. The judge also mentions “TWU’s religious freedom” in P11 and P114, and implicitly refers to it in others.

In addition to being wrong (in my opinion) in itself, granting religious rights to institutions is a troubling precedent. I am concerned that if this reasoning is upheld by other courts, future Canadian jurisprudence may echo recent American rulings, such as the Hobby Lobby case (certain corporations can restrict the health coverage it provides for its employees if a procedure conflicts with the religious beliefs of its owners). The reasoning can also be used to blur the distinction between institutions and individuals (as the United States has also done, and I worry that Canada may be only a few years behind).

Another concern is that TWU has managed to hoodwink the Court. TWU justifies its existence as an accredited Canadian university based on its openness to all prospective students (subject to the restrictions in the Covenant). But while the Court implicitly recognizes this, it also finds (P91) that “the decision to attend TWU is fundamentally a religious one”. The contradiction between TWU being a proselytizing “community committed to making a positive difference in the world for Christ” that allows one  (P92) “to participate in an education community, consisting largely of like-minded individuals, that embraces values grounded in evangelical Christian beliefs”, and being an open, welcoming culture for all - including atheists and homosexuals, who presumably would have significant issues in such an environment - seems to be lost on the Court.

Ultimately, the Court ruled in favour of the Law Society of Upper Canada for two reasons:
  • LSUC was scrupulously fair in the procedure it followed (P122-128) to determine that it would not recognize TWU law graduates. 
  • LSUC has a statutory mandate to serve the public interest. TWU has the right of freedom of religion under section 2 a) of the Charter. The LSUC decision strikes a reasonable balance between these competing objectives. P143 is the crux of this argument: 
“Taking account of the extent of the impact on TWU’s freedom of religion and the LSUC’s mandate to act in the public interest, the decision to not accredit TWU represents a reasonable balance between TWU’s 2(a) right under the Charter and the LSUC’s statutory objectives. While TWU may find it more difficult to operate its law school absent accreditation by the LSUC, the LSUC’s decision does not prevent it from doing so. Instead, the decision denies a public benefit, which the LSUC has been entrusted with bestowing, based on concerns that are entirely in line with the LSUC’s pursuit of its statutory objectives.”
I expect TWU's appeal will focus on discrediting the logic and conclusion of this paragraph of the decision.

One key pillar of the decision - the specifics of LSUC's procedural fairness - will not be the legal principle under dispute if the Supreme Court of Canada agrees to hear the appeal (as there are pending decisions for similar cases in British Columbia and Nova Scotia). The other fundamental argument - that the decision is a reasonable balance between competing rights - confers upon religious organizations a status roughly equivalent to the rights enjoyed by religious individuals. I strongly support the latter, but am deeply uncomfortable with the former.

Thus, unlike last year's Supreme Court ruling on prayers to open official municipal proceedings, the Ontario Court of Appeal decision is not the clear upholding of secular principles that one might hope for.

Monday, June 20, 2016

Trans-Pacific Partnership: An open letter to Chrystia Freeland

On June 15, Minister for International Trade Chrystia Freeland held a town hall meeting in Toronto to consult with the Canadian public about the Trans-Pacific Partnership (TPP). I was fortunate enough to attend.

In addition to Minister Freeland, there were three panelists:
Minister Freeland opened the evening by stating she was on a listening tour, and wanted to hear what Canadians had to say about the TPP. She said she might comment at the end, but her goal was primarily to give the audience the opportunity to speak. She also said that Canada had a secret weapon - she would bring Jerry Diaz, renowned for his fierce and effective negotiating skills, to the join Team Canada at the negotiating table with other countries.

I found this puzzling - the TPP text has been completed. Further changes and negotiations are unlikely as any amendments would need to be agreed to by the other eleven participating countries. Freeland did not elaborate.

Jerry Diaz spoke next, and it quickly became clear his reputation is well-founded. His booming voice filled the hall and his passion quickly swept through the room. He complained that the Japanese and Korean economies are closed to Canadian exports. After calling the Trans-Pacific Partnership "disastrous", Diaz proclaimed that, "We [Canadian labour] are very pro-trade. But we need to protect manufacturing, like the Japanese, like the Koreans!" Rapturous applause followed.

He then stated that "Canada imported about 190,000 automobiles from Japan; Japan imported 100." He provided similar numbers about Korea. This left me puzzled, on a couple of fronts:
  • Japan drives on the left side of the road, so its vehicles have the driver's seat on the right. The country manufactures cars specifically for North American (and European) markets with the steering wheel on the left. Unless Canadian manufacturers produce cars specifically for Japanese markets, why should we expect them to import our vehicles in any significant quantity?
  • If the real issue is trade barriers, and not attempting to sell products unsuitable for the target market, wouldn't an agreement to ease trade be beneficial? There may be other reasons to consider the TPP a "disaster"; but if so, why focus on the current disparity of the number of cars Japan and Korea export to Canada vs. what they import?
Michael Geist spoke next. Freeland mentioned in her opening remarks that she read his entire "The Trouble with the TPP" series, and that her staff would race to understand each post within minutes of publication because "they knew they would be getting questions about them." He mentioned several structural problems with the TPP. "Canada was at a disadvantage throughout the negotiations," Geist said. Because Canada joined the talks late, it had to agree "not to be the lone holdout" on any part of the text. This turned out to be "not just a theoretical limitation" - Canada was forced to "cave" on several provisions in the Intellectual Property chapter when it was the sole objector.

Geist then described how the TPP would mandate changes to Canada's criminal law and Internet governance. Although Canada currently complies with international Internet intellectual property treaties, TPP countries would have to adopt US standards for protecting digital rights management technologies, including new (to Canada) criminal provisions.

"The Trans-Pacific Partnership is best thought of as a meta-treaty," Geist then argued, "because it incorporates the ratification of nine other treaties." Finally, he addressed TPP's investor-state dispute settlement (ISDS) mechanism. "CETA's [Comprehensive Economic and Trade Agreement - a proposed free-trade agreement between Canada the European Union] ISDS is the gold standard, according to Minister Freeland. Why doesn't the TPP have the same protections for all parties?"

"I'm here to argue in favour of the TPP," was the opening statement from Daniel Schwanen, the final panelist. "We have to ask ourselves - are we in or are we out?" He likely underestimated the extent of the audience's hostility to his position. "OUT!!!" the crowd shouted back, emphatically.

For a person dedicated to defending the TPP, his endorsement was surprisingly lukewarm. "Incomes will be raised on average as a result," he claimed. "Not a lot, but a bit." He didn't address any of the particular concerns raised by Jerry Diaz, nor the structural issues brought up by Michael Geist. His brief address was centred on the economic benefits of a generic free trade agreement, with nothing (beyond naming some of the countries that are part of the agreement) that was specific to the TPP. He closed with, "There will be losers from the TPP, but they will lose anyway - and they will lose less if we are in. There will be many more winners." He received some polite applause.

The microphones were then opened to the audience. There were dozens of people who wanted their voices heard - I was one of them - and every single individual was vehement in their opposition to the Trans-Pacific Partnership. Throughout, Minister Freeland sat and listened attentively, smiling and nodding consistently. I have no idea what her opinion of the TPP is.

I prepared the remarks below to read to Minister Freeland. I extemporaneously omitted about a third to reduce duplication with issues already raised by Michael Geist. There were gasps of horror as I read the first paragraph below, and a spontaneous ovation as I finished the third.


Ms. Freeland,

My name is Leslie Rosenblood, a constituent of your riding, University-Rosedale. I am generally against tariffs and protectionism and believe free trade is beneficial to all parties involved.

The Trans-Pacific Partnership is primarily an intellectual property treaty. Secondarily it functions as a profit protection plan for multinational corporations. Only incidentally does the TPP lower tariffs and trade barriers.

Therefore, as an anti-protectionist, pro-free trade citizen of Canada, I am staunchly against our participation in the Trans-Pacific Partnership.

The major thrust of the TPP is the regulation of intellectual property. It demands that Canada extend copyright protection by twenty years – retroactively. While some level of copyright is legitimate to properly reward creators for their successful efforts, I have two major issues with the changes TPP demands of Canada’s copyright regime:
  1. At the life of the author plus 50 years, Canada already provides ample compensation to its writers, and their descendants. We are currently in compliance with existing global treaties and consistent with a majority of TPP countries, including Japan and New Zealand. No academic study has concluded that extending copyright protection for another twenty years would increase incentives to create by any meaningful extent. We would be extending a government-mandated monopoly for no societal benefit.
  2. The increase is retroactive. There is no rational basis for this. By implementing the Trans-Pacific Partnership, Canada would create a decades-long desert during which no Canadian works come into the public domain. Marshal McLuhan will not write a single additional word by extending copyright to life plus 70 years; yet we are contemplating depriving publishers, scholars, and historians unfettered access to important cultural works.
Similarly, history shows that increasing patent protection does not lead to increased investment, research, or innovation in Canada; for example, despite meeting pharmaceutical company demands for additional patent protection in exchange for agreements to provide high-value jobs in Canada, drug company research and development in this nation, as a percentage of sales, has steadily decreased in recent decades.

Extending patents to cover the time required to approve them, and the additional, special data protections given to biologics, is nonsensical – it will increase costs to Canadian companies, consumers, and the Canadian government. I agree that patents are a necessary restraint of trade to incent and reward innovators. Patents must be temporary to allow the next generation of inventors to have as large a pool of knowledge, tools, and techniques to draw from as possible as they make discoveries, acquire insights, and create technologies. This in turn will lead to further research, entrepreneurship, and economic growth.

As a government with a Ministry of Innovation, Science, and Economic Development, surely you must realize that sustainable economic growth comes from widely distributed opportunities, not avenues of profit available to only a few. That is why competitive markets serve the public better than monopolies or oligopolies.

The secondary effect of the Trans-Pacific Partnership would be a corporate profit protection plan. Companies that innovate and produce goods and services that people want at a price that is both compelling to consumers and profitable to provide, deserve their riches. Business is, however, an inherently risky undertaking – and it is only a fiercely protectionist mentality that can justify offloading risk onto governments. Laws, regulations, and taxation levels change over time – and companies should be able to adapt to new circumstances. Obtaining putative future profits today - from governments - via treaties that enshrine current business practices as sacrosanct is the opposite of how a market economy should function.

Minister Freeland, you noted in an interview with Maclean’s earlier this year that the Canada-EU Trade Agreement was “gold-plated” and that “The core notion of having a dispute-resolution process is not to supersede that right to regulate — it is to ensure that governments don’t discriminate against foreign investors.” This may apply to CETA, but the TPP opens the door for corporations to sue participating governments for regulating according to the public interest if predicted future profit streams are potentially diminished as a result.

Canadian investors have an awful track record with existing investor-state dispute settlement bodies, losing over 90% of their cases. Our record defending complaints is not much better – Canada may be forced to pay half a billion dollars to Eli Lilly because the company disagreed with a Canadian court’s ruling about the validity of two patents. Canada can expect to be subject many more such payments if we join the TPP.

It is not in Canada’s interest to expose itself to enormous liability for every future legal or regulatory change.

We already have free trade agreements with the United States, Mexico, Chile, and Peru – five of the twelve countries in the TPP. We have ongoing free trade negotiations with Japan, the largest remaining TPP economy. While I welcome lower tariffs, marginal improvements in trade with distant countries such as Australia and Brunei are not worth – not by several orders of magnitude – the enormous costs involved in accepting the TPP’s numerous protectionist and anti-competitive provisions.

For the sake of an innovative, dynamic, and prosperous Canada – Minister Freeland, I urge you not to ratify the Trans-Pacific Partnership. 

Tuesday, October 13, 2015

Does freedom of religion include a right to discriminate?

Trinity Western University (TWU) is a Canadian Christian post-secondary institution with plans to open a law school in 2016. The Juris Doctor (law degree) program was approved by the British Columbia Ministry of Advanced Education in December 2013. However, due to the contents of TWU's Community Covenant Agreement, the proposed law school has attracted considerable controversy.

The five page covenant covers many aspects of life while attending TWU. Among other things, students must:
  • "reserve sexual expressions of intimacy for marriage" and
  • "Voluntarily abstain from [...] sexual intimacy that violates the sacredness of marriage between a man and a woman".
Elsewhere, in the "Healthy Sexuality" section, the covenant reiterates that "sexual intimacy is reserved for marriage between one man and one woman".

The terms "of this covenant apply to both on and off TWU's campus" - that is, everywhere. "Students sign this covenant  with the commitment to abide by the expectations contained within the Community Covenant," while "TWU reserves the right to question, challenge, or discipline any member in response to actions that impact personal or social welfare." TWU policy is that the school "reserves the right to discipline, dismiss, or refuse a student’s re-admission to the University" if a student violates the terms of the covenant. Signing the covenant is mandatory for all students.

The Law Society of Upper Canada and the Nova Scotia Barristers' Society found TWU's covenant to be so offensive they decided to not recognize its graduates - meaning TWU alumni would not be able to practice law in those provinces. TWU sued both organizations, and each jurisdiction gave a different verdict: Ontario ruled that the Law Society of Upper Canada was within its rights not to recognize graduates from Trinity Western's law school, while the Nova Scotia Supreme Court determined that the Nova Scotia Barristers' Society must accept TWU graduates. Both rulings are being appealed.

What is the principled stand to take when two Charter values - freedom of religion and freedom from discrimination - conflict? Does freedom of association include the capability to exclude certain types of individuals from your group or institution?

It is my opinion that the Ontario court verdict is the ethical and consistent one, while the Nova Scotia judge erred in his ruling.

The TWU covenant is the equivalent of a private (neither funded nor owned by government) hotel chain, or a family-owned bed and breakfast, welcoming married same-sex couples to sleep in their rooms as long as they sign a contract whose terms include remaining celibate for the duration of their stay, while married heterosexuals face no such restrictions.

If you think such restrictions are legitimate, would your answer change if every hotel  and B&B in a sizable region forbade copulation between same-sex married guests? Should landlords be able to legally demand that gay tenants remain celibate, even if this left couples with no place to live or stay the night?

If you think this is a reasonable power for landlords to have, what other criteria could be grounds for refusal to let a room? Hair or skin colour? Certain varieties of religious belief (or their lack)? Rooms restricted to vegetarians?

If you do not agree that landlords and hotel managers should be able to police the private, consensual, legal sexual activities between some married couples, why should a private university have such authority?

Not that TWU is entirely private - it receives between one and three million dollars in government funds each year. There is a strong case that with millions of dollars of government subsidies, TWU should be subject to the same non-discrimination rules as every other recipient of federal money. As a practical matter, however, government funds have represented at most 5% of TWU's revenues. The principle under dispute would not be affected if TWU refused all future government subsidies.

There have been several arguments made in favour of TWU, but I do not find them convincing.
  • There is no (or at most a negligible) practical effect on anyone's rights. This is false. There are currently 18 common law schools in Canada - TWU would be the 19th. Should it proceed, over 5% of the first year law school openings in Canada (and 25% in British Columbia) would be closed to non-celibate married gays (in addition to all those who are sexually active and not married). Essentially, the argument is that discrimination is okay below a certain threshold that TWU does not surpass, since homosexuals can go elsewhere. A formalized "seperate but equal" eduation system was rejected in the United States decades ago; we should not be introducing explicitly exclusionary schools in Canada today.
    Furthermore, this sets a dangerous precedent - what other criteria might other educational institutions set on who can attend? Might a private Hindu university demand all students eschew consumption of beef products, on campus and off? Should a private Jewish university be able to forbid any physical contact between unmarried students of the opposite sex? Could a private Muslim university enforce a requirement that all female students wear a niqab? 
  • The university is exercising its religious freedom in preventing non-celibate gay relationships among the students, staff, and faculty. The logic here is faulty on two levels. First, freedom of conscience applies to people, not organizations. Second, this sentiment demonstrates a fundamental misunderstanding of freedom of conscience. Religious freedom allows you to pray and worship the Deity of your choice in whatever manner you see fit, subject only to generally applicable laws. Religious freedom does NOT extend to demanding others obey your parochial taboos. That is persecution, hiding under the rhetoric of liberty. My freedom to swing my fist stops at the bridge of your nose.
  • The Supreme Court of Canada already ruled on this topic, when TWU opened its teachers college. In 1996, the British Columbia College of Teachers refused to certify graduates from the TWU education program. TWU litigated, and in 2001 the Supreme Court decided in favour of the university. However, the basis of the ruling was not the discriminatory aspects of the school's covenant. Rather, the Supreme Court sided with TWU because there was no evidence that graduates would treat their future gay students prejudicially. The 2001 Supreme Court ruling is not a relevant precedent for the current situation. 
  • Trinity Western has had a teacher's college with a substantially similar covenant for over a decade. Why are lawyers being held to a different standard than teachers? I agree. All of the arguments raised here are as applicable to provincial teachers' associations as their law societies. Perhaps these concerns should have been raised publicly earlier, but that does not invalidate them.
  • The Law Society of Upper Canada and the Nova Scotia Barristers' Society are the wrong parties to be arguing this in our courts. If the TWU covenant violates the Charter or human rights legislation, let a student (or faculty member) file a human rights complaint.  I agree with this argument as well. It's entirely possible that a human rights tribunal (or a direct Charter challenge) would be an appropriate forum to address the issue. But as I am not well versed in the intricacies of Canadian legal jurisprudence, someone more knowledgeable than me would have to weigh in. For now, I take a "Yes, both" approach instead of looking at it as a (possibly false) "Either / or" dichotomy.
Given that TWU has met all provincial curriculum requirements, my objections (and presumably those of the law societies of Ontario and Nova Scotia) to recognizing TWU's graduates would disappear if it also dropped its discriminatory covenant. I find it a bit rich for TWU to claim, in effect,  "How dare you discriminate against TWU just because our school openly discriminates against homosexuals?"

But let's posit, for the sake of the argument, that Trinity Western, as a (largely) private institution regulated by provincial law, should be free to admit only those students who uphold Christian values. Why shouldn't law societies, which are also private bodies regulated by provincial law, be able to withhold recognition from graduates of a program that violates Canadian and Charter values?

On what basis can one both propose that TWU has absolute discretion in determining its admission criteria and deny the same capability of provincial bar associations?