ARPA Presentation to Supreme Court of Canada on the TWU case

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05 Dec 2017 ARPA Presentation to Supreme Court of Canada on the TWU case

Chief justice, justices,

I want to focus my argument this morning on section 15 of the Charter and its relationship to freedom of association as guaranteed by section 2(d).

In oral argument yesterday, what is actually freedom of association has been unfairly or inaccurately described as discrimination. Whenever someone alleges discrimination, we must ask, “By what standard?” By what standard is the allegation of discrimination laid? That standard must be found in law. The law will tell us whether we are dealing with discrimination or association.

The Ontario Court of Appeal erred here. In paragraph 115, the Court ruled that TWU’s admission policy… discriminates… contrary to s. 15 of the Charter and s. 6 of the HRC.

One would expect then that a section 15 analysis and a human rights code analysis would either precede or follow such a bold legal conclusion. However, there is no such legal analysis. It is nowhere to be found in the judgement.

And I respectfully submit that if the legal analysis had been done, the conclusion would have been different: TWU couldn’t have discriminated contrary to section 15 of the Charter, because the Charter doesn’t apply to TWU. And TWU does not discriminate contrary to the Human Rights Code because TWU actually benefits from special protections within that Code.

Those special protections are explicit protections of associational freedom, as this Court has said repeatedly.[1] Those protections enhance associational diversity.

Let’s put meat on these legal bones with two practical examples:

The Chief Justice told us of a law school starting in her basement very soon. Incidentally, that law school is now trending on twitter.

Let’s play with this example. Let’s assume it’s the McLauchlin School of Law for Women. It’s a private attempt to raise the profile of women in the legal profession and to enhance feminist legal scholarship in Canada.

Is that association or discrimination? A thorough legal analysis would reveal this is association, protected by section 2(d) of the Charter, not contrary to section 15, and protected by exemptions in the human rights codes.

Second example: If I told you that I’m imagining a law school that has limited seats for people of colour, every lawyer in this room would say, “That’s a bad thing. We can’t do that.” But then if I told you, “Well, the law school I’m imagining is a law school for Aboriginal peoples, started in Northern Ontario somewhere, to increase First Nations representation in the bar, well that changes the equation, doesn’t it? Is such a program lawful association, or unlawful discrimination?

In each of these examples, the law will tell us conclusively whether we are dealing with association or unlawful discrimination, if we do the legal analysis. And I submit that TWU is analogous to the McLauchlin School of Law for Women, and to the First Nations law school.

[Q. What about a whites-only school?] 1. We might wonder at the motivation for and mission or purpose of such a school and whether that affects the quality of its graduates. If the motivation for the school is bad, say neo-Nazi or something, it might raise serious questions about its graduates suitability. 2. If it’s motivated by hate and bigotry, I can’t imagine it getting the requisite support of qualified legal academics and so on.

Furthermore, if the law societies were to reject the Law School for Women or the First Nations law school, they would be guilty of discrimination on the basis of sex and race, just as they are currently guilty of discrimination against a religious minority, contrary to section 15, in the case of TWU.

The argument that section 15 compels the law societies to reject TWU completely twists the fundamental design of the Charter. The Charter of Rights is a shield to protect the freedom of non-government institutions. To argue that section 15 compels the law societies to reject TWU re-forges that shield into a sword to be wielded by the state to enforce moral conformity. While our constitution has been described as a living tree, it is not a mutant organism, with the ability to fundamentally change its essence. The Charter shields TWU, it does not (as this court has said in TWU 2001[2] and in Andrews[3]) the Charter does not impose section 15 obligations on TWU.

Subject to any questions, those are my submissions.

 

References

[1] Caldwell v. Saint Thomas Aquinas High School, [1984] 2 S.C.R. 603 at 626 [Caldwell].:

…the courts should not in construing [the exception section] consider it merely as a limiting section deserving of a narrow construction. This section, while indeed imposing a limitation on rights in cases where it applies, also confers and protects rights..:

This is the only section in the Act that specifically preserves the right to associate… In a negative sense [it] is a limitation on the rights referred to in other parts of the Code. But in another sense it is a protection of the right to associate. Other sections ban religious discrimination; this section permits the promotion of the religion.

Brossard (Town) v. Québec, [1988] 2 S.C.R. 279 at para. 100: Justice Beetz described these exception sections as being

designed … to allow certain non-profit institutions to create distinctions, exclusions or preferences which would otherwise violate the Charter if those distinctions, exclusions or preferences are justified by the charitable, philanthropic, religious, political or educational nature of the institution in question. In this sense, [the SEES] confers rights upon certain groups. [The SEES] was designed to promote the fundamental right of individuals to freely associate in groups for the purpose of expressing particular views or engaging in particular pursuits. Its effect is to establish the primacy of the rights of the group over the rights of the individual in specified circumstances.

[2] TWU 2001 at para. 25, “To state that the voluntary adoption of a code of conduct based on a person’s own religious beliefs, in a private institution, is sufficient to engage s.15 would be inconsistent with freedom of conscience and religion”.

[3] Andrews confirms this when it states that section 15(1) does not “impose on individuals and groups an obligation to accord equal treatment to others. It is concerned with the application of the law.”

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