Tuesday, 23 Oct 2018

Supreme Court of Canada chooses Equality over Freedom

The Supreme Court of Canada released its decision on Friday the 15th of June 2018 in the case of Trinity Western University v. The Law Society of Upper Canada (2016)& The Law Society of British Columbia (2015). Rejecting Trinity Western University’s (TWU) appeal to establish a Christian Law School in Canada.

To briefly summarize the cases TWU is a private university based in British Columbia which offers a faith based community to learn and practice one’s faith; as part of its community standards TWU requires that students adhere to a code of conduct. This code includes affirming a belief in heterosexual marriage and abstaining from premarital sex. TWU had sought to build a law school, which requires accreditation from provincial law societies. It then received accreditation from every law society except in Canada’s most progressive provinces BC (LSBC) and Ontario (LSUC) with Nova Scotia later reversing their decision and rejecting TWU’s accreditation. These provinces argued that TWUs’ core mandate discriminated against LGBTQ+ people and violated the charter of rights and freedoms (No mention was given as to whether this discriminated against unmarried couples). Put simply this case pitted the charter of freedom of religion versus the guarantee of equal protection under the law.

Despite freedom of religion and conscience being guaranteed by the Canadian Charter of Rights and freedom. The Supreme Court of Canada (SCC) decided against TWU in a 7-2 decision effectively barring Canadian Christian Law Students from attending a university which reflects their beliefs.

Now I am not a lawyer, but rather a legal spectator. So I would defer any legal advice to actual legal professionals. However, the decision in this case has brought forth some profound concerns with respect to religious freedoms in Canada.

To be clear the SCC ruling only effects TWUs admission into the law societies, TWU and its community standards remains. However SCC decision may affect future cases with respect to religious freedom in Canada. With that in mind the SCC seems have ignored it’s own precedent when this exact issue was brought before the SCC in a prior case. In the case of Trinity Western University v. British Columbia College of Teachers(BCCT) 2001. The SCC held that in only considering the religious precepts of TWU, instead of the actual impact the BCCT acted in irrelevant consideration. Essentially TWU’s practices may be discriminatory, but would that produce actual discrimination or prevent LGBTQ+ people from becoming teachers? In 2001 the SCC didn’t think so. Apparently this same standard does not apply to our legal professions.

In fact the majority opinion of the SCC spent a good deal of time considering why TWU v. BCCT (2001) did not apply. Their view was it was not determinative and therefore did not apply. (In other words they did not wanted to acknowledge the precedent set by this case.)The reason given for this was that in TWU v. BCCT (2001) the arguments against the community standards was that it was discriminatory. In this case it was argued that it was in the public’s interest to ban future lawyers from Christian Campuses.

The public interest to which the SCC sought to defend is defined under the Human Rights Act (HRA). It is important to note, as the SCC did that while TWU as a private institution is not bound by the HRA the LSBC and LSUC are. LSBC and LSUC argued it would in violation of the HRA to accredit a university which did not act according the HRA. Fair point. However I would argue that while LSBC and LSUC are bound to the HRA they are only bound within their actions and have no responsibility to what the universities themselves do. The mandate of the LSBC and LSUC is to accept lawyers into the profession, and not to police the course content of university lectures. The only qualification to the legal profession should be passing the bar examination and the lawyers own conduct. Not a School’s commitment towards diversity.

My biggest concern with this case is it presumes a problem that has not occurred. That a LGBTQ+ person would want to attend TWU and that the college would reject them for that reason. Therefore discrimination, therefore SHUT IT DOWN! classic SJW reasoning. But it does not ask the question would a LGBTQ+ want to attend a Conservative Christian College? Of course not! Why would anyone wish to attend a college that is the antithesis of their beliefs? So why should TWU be asked to alter their school to accommodate students who don’t want to attend? There are dozens of laws schools across the country who would happily accept those students. Some of whom are actively campaigning for them!

This case pitted two rights guaranteed by the charter against each other. The freedom of religion versus the guarantee of equal protection under the law. In this case the SCC has chosen the guarantee of equal protection over the freedom of religion. But I ask why did it need to? Can it not simply accept that TWU create its community in its vision and that LGBTQ+ peoples have the right to apply to a college that reflects their values. Why must TWU be forced to accept values it opposes in order to receive accreditation?

The fundamental principle of any constitution is to prevent the unreasonable force of power and here the SCC used their power to do just that. Where two rights are pitted against each other it should not be a decision on which right gets priority over the other. Rather it should be how can we reasonably accommodate both rights. In my view the SCC has failed to so in its ruling.

This case marks a disturbing trend with our legal system as our courts and institutions appear to be increasingly biased towards leftist doctrine. Whether it is the LSUC forcing it’s members to advocate for diversity, the University of Victoria’s blatant commitment to social justice (which is antithetical to the principles of fundamental justice) , the the SCC mandating that the historical implications of colonialism be considered when sentencing indigenous Canadians (I.e. Indigenous Canadians get lower sentences) and a litany of other examples. The case is clearly another marker on this disturbing trend. For all the reasons given as to why SCC made it’s ruling, perhaps the underlying motive was a fear that perhaps one day the SCC might have to face a TWU graduate and answer for this nonsense.

An Article by Independent Author CRK

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