A Slam-Dunk for Religious Freedom

08 Nov 2016 A Slam-Dunk for Religious Freedom

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Trinity Western University has won another round in its battle to establish a Law School.  The BC Court of Appeal ruled last week that efforts by the Law Society of BC to shut down that Law School were a violation of the Charter’s guarantees of Freedom of Religion. Click here to read more and click here to read the transcript of the interview with ARPA Canada’s Director of Law & Policy, André Schutten.

In the news:

In Alberta, a judge has granted a temporary injunction quashing a government attempt to shut down a School Board that was responsible for monitoring about a third of all the homeschoolers in the province. Click here to read the story.

The Ontario government is facing more pressure on Bill 28. Click here to read the story.

And the federal government’s bill on transgenderism is ready to go back to Parliament for a final vote. Click here to read the story.

A BIG WIN FOR TWU

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Trinity Western University in BC has won another round in the legal battle over accreditation of its proposed Law School. A 5-judge panel of the BC Court of Appeal ruled unanimously last week that efforts by the Law Society of BC to deny graduates of that proposed Christian Law School admission to the BC Bar constituted a violation of the freedom of religion rights of the school and its supporters. The clearest defense of religious freedom came in this quote from the ruling: “A well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in fact intolerant and illiberal.”

At issue was TWU’s so-called community covenant, in which students and faculty agree to confine their sexual activity exclusively to heterosexual marriage. Critics say that covenant discriminates against the LGBTQ community, but the court disagreed. TWU’s Amy Robertson says that argument doesn’t hold water because the University doesn’t refuse admission to gay students.

This is the second Appeal Court ruling to uphold TWU’s position; Nova Scotia’s highest court also sided with the Christian university. But in Ontario, a decision went the other way, and that case is going to the Supreme Court of Canada, probably sometime next year.

INJUNCTION TEMPORARILY REINSTATES ACCREDITATION FOR TRINITY/WISDOM HOMESCHOOL GROUP

Jay Cameron, Lawyer for Trinity Christian School Association
Jay Cameron, Lawyer for Trinity Christian School Association

A Court of Queen’s Bench judge in Alberta has granted a temporary injunction to re-instate accreditation for the Trinity Christian School Association, and its Wisdom Home Schooling contactor. The organization is the largest homeschool supervising board in the province, with close to 3,500 students registered. The province had revoked its accreditation last month, over allegations of financial mismanagement. But on Friday, Justice E. J. Simpson overturned that decision. The reinstatement comes without any resumption in government funding; that issue will be determined in January. In the ruling, Simpson said he was trying to protect both students and taxpayers pending the outcome of a hearing set for January 5. Trinity lawyer Jay Cameron says this temporary injunction is the first in a three-step process.

In January, he’ll be applying to make the injunction permanent which – if successful – would presumably reinstate funding to the school. Cameron says if that injunction is granted, they’ll be pushing for a full hearing on the process that the government used to close the school. “It was a grave injustice, a grave violation of the rule of law, and it’s a highly inappropriate and unconstitutional action on behalf of the government.” Cameron says he’s still hoping that the government will avoid the court battle by reconsidering the entire decision.

However, Education Minister David Eggen released a statement after Friday’s court decision, saying it’s important to note that the ruling was not a final determination on the merits of the case, and that the government is standing by its position because of allegations of financial irregularities in the way Trinity and Wisdom conducted their operations.

BILL 28 CLEARS COMMITTEE DEBATE

Andrea Mrozek, Program Director - Cardus Family
Andrea Mrozek, Program Director - Cardus Family

The Ontario government is getting ready to hold a vote on Bill 28. This is the law that essentially redefines the family unit in that province. The “All Families Are Equal Act” removes the term “mother” and “father” from all Ontario law, replacing it with the term “parent”. The bill also eliminates the basic assumption of Ontario law that a child has no more than two parents, allowing for up to four adults to sign on as parents before a child is even conceived.

Andrea Mrozek with Cardus Family says the bill has so many problems, it’s “hard to know where to begin.” She says the criticism has been broad, not just from pro-family groups, but also from those in fertility law. “They have had concerns about the bill because it confuses and messes around with what it means to be parents. At the end of the day,” Mrozek says, “the state should have one interest, and that is that children should not be abandoned, and this bill leaves room for that concern to arise; that children would not be cared for by any parent whatsoever.”

A vote on the bill is now expected at Queen’s Park next week.

ARPA chapters launch awareness campaign on Bill 28

Several local ARPA chapters in Ontario are trying to raise public awareness about Bill 28. They’ve purchased radio ads on stations in four markets – Niagara, Hamilton, London, and Oxford County, urging people to contact the government on this. ARPA Oxford’s James Van Gurp says there “needs to be a voice out there that holds the government to account for the decisions they’re pushing forward.” Van Gurp says the family is the “building block of society; something that’s been entrenched for many years, and to change that by law in 30 days is unheard of, so we want to make sure the general population is aware of what’s going on in our government.” You can hear a sample of the radio ads here.

FEDERAL BILL ON TRANSGENDER RIGHTS CLEARS COMMITTEE STAGE

MP Ted Falk
MP Ted Falk

The Justice and Human Rights Committee of Parliament has wrapped up its consideration of Bill C-16; that’s the proposal which would add the terms “gender identity” and “gender expression” to the grounds under which discrimination will be prohibited under the Canada Human Rights Act and the Criminal Code. The Committee took less than two hours to complete the process last Thursday.

Committee vice-chair Ted Falk, a Conservative MP from Manitoba, isn’t happy with the way the committee handled the bill. He says there was no opportunity for any public input. The committee, he says, was told that the issue had been subject to “lots of testimony at previous committee hearings and at Senate hearings, and people were free to go back and… re-read all (of that) testimony.” Falk says that may be accurate, but it’s “not adequate”.

He says Parliamentarians should always be willing to listen to input from stakeholders. “I think we failed Canadians, we failed our constituents, and certainly we failed this piece of legislation because we didn’t have an opportunity to listen to arguments either for or against it. We didn’t have any opportunities to include any safeguards, or to strengthen the bill.”

Bill C-16 is expected to come to a vote in the Commons later this month.

FEATURE TRANSCRIPT

André Schutten, Director of Law and Policy - ARPA Canada
André Schutten, Director of Law and Policy - ARPA Canada

The BC Court of Appeal has sided with Trinity Western University in its attempts to start up a law school.

ARPA lawyer André Schutten was one of the intervenors in this case – as well as in two other provincial challenges to the law school.

LN: First of all, can you contextualize for us exactly what the Court said?

AS: So this is a good win, like it’s a really good win. It’s a slam-dunk for religious freedom, and I’m really happy to see it. I had a feeling – I think I predicted on this show before – that we would win this case, but I thought that we’d probably win more on just the technical (and) administrative grounds, but this was definitely a solid constitutional win for religious freedom.

All five judges unanimously decided together to delve into those deep questions of diversity and tolerance and religious freedom and so on, and they really stood up for religious freedom. They said “this needs to be protected; what has happened in this case is that the majority – being the majority of lawyers in BC – have discriminated against (and) infringed on the religious freedoms of a minority, being Trinity Western University, its staff and its students.”

LN: You alluded to this when we last spoke about this; the whole case was being argued primarily (at least the Law Society was arguing it (and Trinity was arguing it) primarily on process. On the notion that it was the process that was unfair to Trinity and that it wasn’t so much about religious freedom as it was about the i’s being dotted and the t’s being crossed. ARPA brought the religious freedom and freedom of association argument to the table. Are you surprised that the Court kind of diverted from the main arguments and did the focus the way it did?

AS: Well, I’d say it was about 50-50, the arguments of the Law Society and Trinity Western; probably a good half of their time was spent on process, and they also did spend time on the constitutional issues. But it was definitely all of the intervenors – and there were quite a few on both sides – (who) really focused in on those questions of constitutional law. The big, broad principles of what it means to live together in a free society where you should have freedom of association and freedom of religion. The Court did spend time on those technical questions too. The first half of their decision does deal with that, and they did find problems there. They did find that the benchers had fettered some of their discretion that was questionable. They found that the benchers did not properly balance the statutory objective – so that’s the piece of legislation that gives them authority and tells them what their objectives are – they didn’t balance those objectives with the actual Charter rights that are being infringed, in this case religious freedom.

So they did engage in that kind of administrative analysis, but then they go right into the constitutional analysis and say “look, we have to deal with constitutional analysis as well because that’s what helps inform whether or not they (were) properly balanced.”

So the second half of the judgement is that deep, rich, and in my view beautiful discussion about religious freedom and equality and diversity and tolerance and so on.

LN: You were one of the lawyers intervening – ARPA had intervenor status here. As a lawyer, when you look at a judgement like this, you’re always looking to see how many of your arguments were reflected in the final analysis. Have you have a chance to go through it and say “you know what? The judges really heard ARPA’s arguments specifically.” And what were those, and were they reflected there?

AS: It’s always difficult to tell exactly who they heard it from best. There is overlap of argument from intervenor to intervenor, and there is overlap between the intervenors and the actual parties. But there were a couple of references there which I think we were definitely arguing and did show up in the decision.

For example, at paragraph 150, the Court reiterates something that ARPA was definitely arguing over and over again, (which is) that there is a limited reach of the Charter. The Charter applies to the government, as a limit on the government. The Charter applies to the Law Society as a limit on its power, but the Charter does not apply to a private institution like Trinity Western. Trinity Western does not have to guard the equality rights of other people. It’s part of the free civil society. So that was picked up; we’ve been saying that all along.

And another key argument that ARPA really was focused in on is the fact that in this case, unlike what the other side was saying – the other side was saying that this is a conflict of Charter rights, between Section 15 equality rights of sexual minorities versus section 2a) religious freedom rights of Christians – but ARPA was saying no, no, no, no. That is not what’s happening here. What’s happening here is that the section 2a) religious freedom of Trinity is being undermined by the Law Society, and also the section 15 equality rights of Trinity students – the right to be treated equally also on the grounds of religion – that too is implicated on the side of Trinity. But there are no Charter rights being violated as far as the LGBTQ community goes. And the Court affirms that. They said in paragraph 115 that this case does not involve a direct contest between Charter rights. So there’s no Charter rights in conflict here. And why is that? Because the case is about the State – through the Law Society – discriminating against or interfering with the deeply held religious views of the Trinity Western community.

LN: So what’s next? I mean, we have the opposite ruling in Ontario, where their Court of Appeal said that Law Society of Upper Canada was okay to deny Trinity. Now we’ve got the BC decision. The Nova Scotia decision is not going to go to the Supreme Court. I’m assuming the BC one will. This leaves the Supreme Court with a bit of a quandary.

AS: So if the Benches (Law) Society in BC decides to appeal, then certainly the Supreme Court is going to have to sort out well, which one of them got it right, Ontario or BC? Because BC Court of Appeal does call out the Ontario Court of Appeal on a couple of occasions where they say, “Well, you didn’t get it quite right.” Which I really, really appreciated. But we have to wait and see if BC benchers are going to appeal. I mean, they’ve now been roundly beaten by not just the lower court judge by now by a unanimous panel of 5 judges at their Court of Appeal. And so, I think it’s definitely possible that they might say “look, we tried fighting this twice.” They originally had agreed with the Trinity Western Law School, so clearly the law has been on the side of Trinity Western all along. Ontario is an anomaly. I mean, if we look at the total number of judges who have (now) sided with Trinity Western; there’s 12 judges who have ruled in favour of Trinity Western and there’s only 6 who have ruled against it. So I think – and I hope – that BC just leaves it alone, and that Trinity Western can begin building their Law School as soon as possible. If the Ontario case goes on to the Supreme Court, (then) here’s to hoping that the Supreme Court listens to the BC Court of Appeal rather than the Ontario Court of Appeal decision, because the BC one is definitely the better one, that’s for sure.

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