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.