Friday, May 10, 2019

Canadian Secular Alliance Presentation to the House of Commons Standing Committee on Justice and Human Rights

Yesterday morning I testified before the House of Commons Standing Committee on Justice and Human Rights. In April, the Committee invited Canadians to participate in its study of online hate, and asked the Canadian Secular Alliance to provide its perspective. Below are is the statement I made to the Committee.


Good morning. My name is Leslie Rosenblood and my colleague is Greg Oliver. We are here on behalf of the Canadian Secular Alliance. We greatly appreciate the opportunity to speak before you today.

The Canadian Secular Alliance is a non-partisan and registered not-for-profit organization whose mandate is to promote the separation of religion and state in Canada.

Our goal today is to provide a robust defense of three core principles that a central to all liberal democracies: government neutrality in matters of religion; equality for all under the law, and free expression.

Government Neutrality


People deserve protection from harm; ideas do not warrant protection from criticism. This distinction is crucial to today's discussion and it is imperative that these are not conflated. Assaults on religious people must be deterred, prevented, and prosecuted. But just as Canada’s political parties can (and do!) vigorously attack each other’s platforms and proposals, criticism of religious tenets, no matter how vitriolic, must be fully permissible.

Religious beliefs are ideas, and should not be treated any differently than other philosophical doctrine – political, economic, philosophical, or otherwise. Attacking the ideas in a book should never be considered equivalent to an attack on the people who revere those words.

Equal Protection under the Law


It would be ludicrous to for the law to treat two, say, burglars differently based on which party they voted for in the previous election. Yet our Criminal Code today does something analogous where the willful promotion of hatred is concerned. Religious individuals are given preferential treatment under the law. Section 319(3)(b) of the Criminal Code exempts a person, who would otherwise be subject to an indictable offense, if their hate speech is "based on a belief in a religious text". This is a clear violation of the principle of state neutrality in matters of religion. The harm suffered by vulnerable persons and groups is identical whatever inspired the hate monger. The Canadian Secular Alliance recommends that Canada repeal Section 319, subsection 3(b) of the Criminal Code.

The majority opinion of the Supreme Court of Canada wrote last year that “Accommodating diverse beliefs and values is a precondition to the secularism and the pluralism that are needed to protect and promote the Charter rights of all Canadians. State neutrality requires that the state neither favour nor hinder any particular belief, and the same holds true for non‑belief. Either way, state neutrality must prevail.” Our legislature also recognizes that treating religious ideas as a form of thought warranting special treatment is detrimental to society and obsolete, as demonstrated by the repeal of Canada’s
blasphemous libel law last year. This action was a significant step forward. Our country should not retreat from its commitment to humanitarian values that apply equally to all Canadians.

Free Speech


While legitimate constraints to unfettered speech exist - including libel, impersonation, threats and incitement to violence - any exceptions must be limited, well-defined, and serve the public interest. Any proposal that seeks to further limit free expression must pass a high burden of proof in order to counter legitimate concerns about overreach, ambiguity, and selective enforcement.

Therefore the goal of hate speech laws must be to protect individuals from physical harm. However, they rarely achieve this aim. After studying the issue in many countries, Human Rights Watch stated "there is little connection in practice between draconian hate speech laws and the lessening of ethnic and racial violence or tension." The same conclusion was reached by the European Parliament and the UN High Commissioner for Human Rights.

The key problem with hate speech laws is that hate speech is impossible to define in such a way as to meet the twin goals of targeting a significant portion of unacceptable expression while respecting the principle of free speech. If its scope is very narrow and specific, any new law will have minimal impact on Canadian public discourse. But a broadly worded Act would necessarily encompass much speech protected by section 2(b) of the Canadian Charter of Rights and Freedoms. Additionally, in many countries (including established democracies) hate speech laws have often been disproportionately enforced against members of the very minority groups they were designed to protect.

Overly broad hate speech laws also have a non-trivial chilling effect on all public criticism. The Supreme Court has described "hatred" as speech "that is likely to expose" people to "hatred or contempt": "unusually strong and deep-felt emotions of detestation, calumny and vilification"; and "enmity and extreme ill-will [...] which goes beyond mere disdain or dislike." How can a person know whether their strong negative opinion of a person or group will be considered "disdain" - permissible - or "detestation" - punishable? In a dissenting opinion on the Keegstra case, Supreme Court Justice McLachlin wrote, the "sanction of the criminal law may pose little deterrent to a convinced hate-monger who may welcome the publicity it brings; it may, however, deter the ordinary individual."

Hate speech laws leave three options for those inclined to engage in hateful, discriminatory speech: taking the forbidden expression underground; couching their ideas in more subtle rhetoric to evade punishment; or leaving the message unchanged (or perhaps make it even more provocative) as the speakers seek the publicity that results from prosecution. Perhaps that is why Canada has so rarely invoked its existing hate speech law.

With the increasing prevalence of social media in the lives of Canadians, the CSA recognizes that the way we communicate and connect with each other has changed and new challenges have emerged. The CSA recognizes that these are serious issues that require attention, but they fall outside of our mandate so we will defer to other experts for appropriate remedies. We urge the Government to avoid the fallacious reasoning of, "We must do something. This is something - therefore we must do it."

We urge this committee to maintain its commitment to crucial Charter values of free speech and equality for all under the law. This can only be realized when government neither supports nor suppresses religious expression, but remains neutral. Thank you.

Friday, January 11, 2019

How to change a law in six easy (?) steps

Below is a lightly edited article I wrote for the January 2019 edition of Critical Links, the monthly newsletter of the Centre for Inquiry Canada.

It boggles the mind that Canada had, until late last year, a law prohibiting "blasphemous libel", punishable by up to two years in prison. Though it had not been invoked in decades, I believed this to be an unjustifiable restriction on freedom of expression, and played a minor role in ensuring no one will ever again be charged with blasphemy in Canada.

I am not a professional lobbyist. Though I try to stay informed about current events, I am not particularly politically active, nor have I ever been a member of any political party. My priorities in life are raising my four young children and doing well in my job. So how does a "nobody" like me go about repealing an obsolete law that no one seems to care about?

Here's my advice for those outside government seeking to improve the world through legislative change.
  1. Wait for an opportune time. The road to repealing Canada's blasphemy law started in September 2016 when an Alberta judge cited a section of the Criminal Code that the Supreme Court had declared to be unconstitutional in 1990. In response to this embarrassment, Justice Minister Jody Wilson-Raybould announced she had ordered a review of Criminal Code provisions found to be unconstitutional. This was clearly the time to take action. 
  2. Build a coalition. Politicians answer to Canadians writ large. Bureaucrats answer to politicians. If you are speaking just for yourself, no one in power will want to speak with you. But when representatives from three of Canada's leading non-religious organizations - Centre for Inquiry Canada, Canadian Secular Alliance, and Humanist Canada, each of which had established institutional credibility over the years - presented a joint request, we were granted a meeting with the Senior Policy Advisor in charge of the Criminal Code at the Justice Department. 
  3. Marshall your arguments. Ensure you know your material. You will want to leave a positive impression with whomever you're speaking with, so do not waste even a minute of their time. CFI, CSA, and HC met in advance to agree on major talking points and the more detailed rationales for each position. Because everyone from the three organizations was familiar with everything we wanted to convey, there was neither repetition nor contradiction when any of us spoke. 
  4. Do your research. Stating a reasonable sounding philosophical position is a good start, but is not enough. If the benefits or harms are merely theoretical, it may make for an interesting chat, but it will not drive change. Ensure your carefully constructed arguments are externally validated - backed by evidence, references, and (especially with politicians!) media pieces. You needn't cite every article in conversation, but be sure to have them at the ready if asked or challenged, and offer to leave a full package behind before you leave. 
  5. Tailor your presentation to your audience. As much as possible, learn in advance about whom you will be speaking with and what they might want from you. This doesn't involve spying or any form of skulduggery. Simply by looking up someone's profile on LinkedIn and understanding where they fit in their organization's hierarchy, you can gain valuable insights into what might motivate them. You should be familiar enough with what you want to communicate that you can alter the planned order or emphasis based on the flow of the conversation. Our meeting in December 2016 was with a lawyer with impeccable credentials - so we ensured we demonstrated knowledge on the topic of blasphemy without claiming to have legal expertise. We tied our goal - repealing Canada's blasphemous libel law - to the (very public) review commissioned by the Justice Minister a couple months previously. While we acknowledged that it had never been tested by the courts, we argued Canada's blasphemy law almost certainly violates the right to freedom of expression enshrined in section 2 of the Canadian Charter of Rights and Freedoms - which made it within scope of the review. The government could avoid a potential future embarrassment by removing a law before a judge referred to it in a conviction, only subsequently to have both the conviction overturned and the law struck down. 
  6. Be patient. The wheels of government (in fact, of any large organization) turn slowly. We met with representatives of the Justice Department on December 16, 2016. On March 8, 2017, the government introduced Bill C-39, which would remove from the Criminal Code only those sections previously struck down by the courts. After an initial bout of disappointment, we took heart from Minister Wilson-Raybould's statement that this was only a "first step". Sure enough, three months later, on June 6 2017, Bill C-51 was brought before the House of Commons. It was an omnibus bill that, in addition to repealing Canada's blasphemy law, removed sections related to (among other things) challenging someone to a duel, fraudulently pretending to practise witchcraft, and impersonating someone during a university exam. But the main changes in the bill were updating provisions related to consent and admissibility of evidence in sexual assault trials. For this reason, it was carefully studied by both the House of Commons and the Senate, taking over 18 months before it received Royal Assent on December 13, 2018 - nearly two years after CFI, CSA, and HC met with the Justice Department to press our case. 
If someone like me - no one in particular, with zero public profile, no insider connections, and no experience trying to influence the legislative process - can play even a small part in repealing a manifestly unjust law, so - with appropriate prioritization and persistence - can you.

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 Canada, Canadian 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.