Called To Participate, But Not At The Table

A strange thing has occurred in the case of Trinity Western University v. The Law Society of Upper Canada. On July 17, 2014, Canadian Council of Christian Charities (CCCC) received a public notice[i] from the Law Society outlining how CCCC could participate by applying to intervene in the case. On August 12, CCCC filed the appropriate documentation seeking the court’s permission to participate. Given that this case is perhaps the most important religious freedom case since the Marriage Reference case at the Supreme Court of Canada 10 years ago, we decided that it was important for the Divisional Court of Ontario to hear our concerns. Unfortunately, the Divisional Court rejected our application in a decision dated September 24, 2014. We were refused a seat at the table.

Why Intervene?

Intervention by parties who are affected by Charter decisions has become a necessary and vital part of our constitutional litigation practise. Interveners provide an invaluable service to the courts by providing new angles of understanding and highlighting the potential magnitude of a decision.

When CCCC received the public notice from the Law Society of Upper Canada (LSUC), we felt duty-bound to seek intervention to ensure that the interests of our membership were represented. This case may significantly impact the core interests of religious communities: it involves the right of a religious community to determine for itself its internal rules of community as expressed in its religious beliefs and practises. TWU, as you recall, was granted accreditation for a School of Law by the Federation of Law Societies of Canada, but the LSUC refused to accept the Federation’s decision. LSUC disagrees with TWU’s Community Covenant, which requires its student body to live in harmony with the Christian definition of marriage as being between one man and one woman. TWU is now seeking a judicial review of the LSUC decision.

It is not for the LSUC or the courts to consider whether the majority of Canadian society agrees with TWU’s Community Covenant or whether the legal profession is in agreement. The LSUC and the courts are only required to determine whether the Community Covenant is in violation of the law. As the law currently stands, the Community Covenant is well onside, as was noted by the Federation which gave serious consideration to this and concluded, “there is no public interest reason to exclude future graduates of the program from law society bar admission programs as long as the program meets the National Requirement.”[ii] However, that has not prevented those who are opposed from using their influence with legal regulators to deny recognition of the TWU School of Law.

It is, therefore, all the more important that organizations like CCCC be given the opportunity to outline their concerns about this development that has both legal and public policy consequences for the charitable sector.

Consequences of TWU Failing In Its Bid

Should TWU ultimately fail in its bid, then we anticipate a series of legal assaults on the status and protection of religious communities and organizations. There is no question that the current state of the law protects religious communities to make rules of inclusion and exclusion as TWU has done. This is the result of our history and culture in Canada. Historically, there was a recognition that Canada’s success depended upon the ability of religious communities to determine for themselves their own unique internal rules and procedures. The restriction of individual freedom within the religious community is anathema to the secular preoccupation with the unfettered right of the individual. However, for religious groups, it is both necessary and Biblical. As Winnifred Sullivan recognized, “[i]t is the peculiar nature of religion itself to restrict freedom.”[iii] She continues,

Religion challenges the rule of law. To be religious is, in some sense, to be obedient to a rule outside of oneself and one’s government, whether that rule is understood to be established by God, or otherwise. It is to do what must be done. To be religious is, for most people, to live without a certain amount of freedom. To be religious is not to be free, but to be faithful.[iv]

The basic right of religious communities to determine for themselves who can and cannot be a member of their community extends not only to the very core (religious) identity of the community, but to the individual members of that community. Individuals in a free and democratic society choose with whom they will associate – including those of like religious views. It is a basic right of humankind to associate together based upon particular shared beliefs. In this case, it is to run a School of Law within a Christian ethos that includes the traditional teaching of marriage. Clearly, it is not against the law of Canada to promote diverse views on marriage – as noted in the Civil Marriage Act.[v]

A sizable constituency in the legal profession currently supports TWU’s religious freedom to have different views on marriage, but denies them the legal right to “discriminate” by requiring students to sign the Community Covenant. In essence, their argument is, “You can have the belief, as an organization, that marriage is one man and one woman, but just don’t act on that belief!” Should that view prevail, we can expect the same logic to be applied to other areas. For example, if the legal profession is successful in denying TWU accreditation, then other professions may well follow – the BC Teachers College already challenged TWU with respect to its education degree status – is there any doubt they will try again?

Further, the same logic applies to the idea that government should not allow “discriminatory” religious universities to have degree granting status or for elementary and secondary schools to issue diplomas. Consider the following statement of law professor and LGBTQ advocate Bruce MacDougall:

 The question is whether in the context of education provided or administered by a religious organisation, the teachings of that religion can be constrained in any way by constitutional equality interests. The education provided is not just any education, but part of an education programme certified or authorized in some way by the state and providing an alternative to the education which would normally be provided by the state itself. Various religions provide supplementary education of some sort that is not associated with state accreditation, for example Sunday schools or after-hours education in a particular language or cultural tradition. Such education can perhaps legitimately ignore equality concerns, for example, by not teaching girls or people not of a particular ethnicity. In the context of an accredited school or college, however, the state is lending or transferring its authority — and duties — to such institutions. The constitutional obligations of the state ought to be transferred with that authority and duty.[vi]  (Emphasis added.)

           Professor MacDougall is thereby suggesting that the state recognition of the private schools results in them being state actors – for which the Charter obligations of the state apply. There can be little question of a looming threat. The very ability of Christian schools to determine for themselves and their constituencies how the schools will be run and operated within their religious understandings is in the crosshairs. This will totally negate any semblance of religious civil society separate and apart from the state. The state then intrudes into the very workings of the religious community.

It is not expected to end there – there are other religious programs “certified or authorized in some way by the state.” Religious communities receive the “authorization” of registered charitable status to conduct all kinds of works – will they fit within this reasoning as well? Applying the same logic would make it appear so.  Should TWU lose this judicial review, there is much at stake.

Why CCCC Was Declined Intervener Status

          CCCC felt it necessary to intervene and present our concerns to the Divisional Court in Ontario. Unfortunately, the court was of the view that our participation was unnecessary. Three reasons were given for Justice Nordheimer’s decline:

• The arguments of CCCC on religious freedom would be aptly covered by other interveners in the case.
• There had to be a “balance of positions advocated.”
• Justice Nordheimer was concerned that the court’s time not be taken up by every nuanced argument.
• You may read his decision here: http://canlii.ca/t/gdq88.

On October 24, 2014 we appeared before a panel of three judges of the Divisional Court and argued why Justice Nordheimer’s decision should be varied to allow us intervener status. However, the panel denied our appeal. Their decision is here: http://canlii.ca/t/gf31p

We felt we could make further arguments to the court in response to the concerns raised; however, given the timeline and potential interruption of the case, elected to not appeal the decision. You may want to review the documents CCCC filed in the Divisional Court here:  https://www.cccc.org/courtdocs

Despite this setback, we are nevertheless engaged in the court proceedings in Nova Scotia and have filed our “factum” (i.e., court brief of our legal argument) on October 28, 2014. You may read that document here: https://www.cccc.org/documents/courtdocs/cccc_intervener_s_brief_filed_twu_v._nsbs.pdf .

As the Ontario case proceeds through the judicial system, there is every indication that it will make its way to the Supreme Court of Canada. We may well decide to seek intervention at the Ontario Court of Appeal and again at the Supreme Court.  This is a significant cultural moment that demands participation in these legal proceedings from the religious communities.  At stake is the right of religious communities to define themselves in light of their religious convictions – for that reason we need to be at the table not out on the curb looking in from a distance.

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[i] http://goo.gl/uCV6yi

[ii] http://www.flsc.ca/en/twu-common-law-program/

[iii] Winnifred Fallers Sullivan, The Impossibility of Religious Freedom, (Princeton: Princeton University Press, 2005), p. 155.

[iv] Sullivan, supra, at p. 156.

[v] Civil Marriage Act, S.C. 2005, c. 33 at preamble, ss. 3, 3.1.

[vi] Bruce MacDougall, “The Separation of Church and Date: Destabilizing Traditional Religion-based Legal Norms on Sexuality,” (2003) 36 U.B.C. L. Rev. 1 – 27, paragraph 36.