I wrote a post for today about the Supreme Curt of Canada’s decision in the Trinity Western University case. It was written within minutes of the decision being rendered and I have decided that, unlike most of the things I put here, it should be edited before publication.
I have followed the case for the better part of a decade, and know a lawyer who was involved. To me the law seems simple and the decision irrational – but not entirely unexpected given the way the Supreme court has been interpreting the law. My first response was rather emotional and some of my statements more hyperbole than truth.
I will take that post, look at it more closely, and share it with you another day. By then I hope it will be more analysis than gut reaction and will be a meaningful contribution to the debate on freedom of religion or belief in Canada than just a rant.
I think my emotional reaction was coloured by the fact that much of my work on a daily basis is in supporting Christians who are facing persecution in the Middle East. I have observed how courts and laws are used as tools of oppression, and while that is not the case in Canada, there are no guarantees that we won’t devolve that way. (Is that hyperbole?)
Instead of my words, I want to share a press release I received from ARPA Canada. It is far more reasoned and less emotional than I was yesterday.
For immediate release from the Association for Reformed Political Action (ARPA) Canada
June 15, 2018
Supreme Court rules against TWU, placing public perception over rule of law
OTTAWA – This morning,the Supreme Court of Canada ruled against Trinity Western University and their proposed Christian law school. Justices Brown and Côté dissented.
The Association for Reformed Political Action (ARPA) Canada, was an intervener in the case. André Schutten, ARPA’s Director of Law and Policy, and John Sikkema, ARPA’s Legal Counsel, acted as counsel for ARPA in the intervention.
ARPA sees several major problems with the majority judgement.
First, it justifies the law societies’ rejection of Trinity Western University not based on an intelligible legal rule or standard, but based on the undefined, amorphous concepts of “Charter values” and “public interest”. The majority says the law societies were entitled to choose to give the meaning they wanted to their statutory objective to protect the “public interest”.
By relying on Charter values, says Schutten, “The majority fails to appreciate that the Charter limits the power of state actors – including the law societies – and shields non-state actors, including religious communities and institutions like TWU.”
Second, having relied on “public interest” informed by “Charter values” to justify the rejection of TWU, the majority errs in its analysis of what is in the public interest, even on a broad interpretation of it.
“The majority says the law societies’ fear of negative public perception was a legitimate reason to reject TWU,” says Schutten. “But there are also negative public perceptions resulting from the rejection of TWU. In any case, neither the law societies nor the courts are in the business of public opinion polling, nor should they make decisions based on prevailing public opinion on sensitive issues.”
“The majority also fails to recognize the public interest benefits of a diversity of educational institutions and a diversity of moral and philosophical perspectives in the legal profession,” says John Sikkema, legal counsel with ARPA Canada. “It is not against the public interest for individuals or civic institutions to hold to different views on sexual morality and marriage.”
“Perhaps most disappointing from our perspective, the majority failed to account for or even address the equality rights of prospective TWU students or TWU’s freedom of association. These were issues we raised in our oral and written arguments to the court,” says Schutten. “The majority says it need not address those rights claims, because it is sufficient to ask whether the violation of freedom of religion is justified.” ARPA Canada believes that these other rights should play an important part in the “proportionality” analysis of the law societies’ decisions.
Ultimately, ARPA agrees with the dissent that the majority “betrays the promise of our Constitution that rights limitations must be demonstrably justified.”
“We are as yet unsure of the implications of this decision on communities of faith across the country,” says Sikkema. “We will be analyzing this further in the coming days, for sure.”
I think that was very well put for a release that was issued before the first news stories came out. Give me a week or so to calm down and I’ll return to the topic and what it means for freedom of religion in Canada.