Trinity Western University and the Legal War of Attrition: Isn’t It Time To Let Diversity Flourish?

A legal war of attrition is an apt description.  Trinity Western University’s (TWU) bid for a law school has one court victory in Nova Scotia (now appealed), one loss in Ontario (also soon to be appealed) and is about to embark on its third court hearing in less than a year, in British Columbia.  The hearing is set for August 24-28 in Vancouver.

TWU had a similar fight fifteen years ago when it went to the Supreme Court of Canada to get its education degree accredited.  However, that was only one litigation track – now it faces three!  The Supreme Court ordered the BC College of Teachers to accredit TWU’s education degree.  That was in 2001.  A long time ago – for some.  So long, in fact, that they say that the 2001 SCC case has no bearing on the current struggle.  Times change.  The argument is — we are more progressive and the Court would not decide as it did in 2001.  That is to be seen.

At stake is whether religious autonomy remains part of the Canadian promise of diversity and multiculturalism, as noted in section 27 of the Canadian Charter of Rights.  Or, can the state come in to such communities and expunge from their beliefs and practises elements it disagrees with?  Or, make life so difficult for such communities that they either close shop or comply.  TWU’s “Community Covenant” requires students to abstain from, “sexual intimacy that violates the sacredness of marriage between a man and a woman.”[1]  This is similar to the 2001 iteration and is perfectly legal.  However, the law societies do not like it.

When marriage was redefined “for civil purposes” in 2005 a number of protections were given to religious communities that, when looked at as a whole, was meant to maintain diversity in Canada.  First, the Civil Marriage Act stated, “no person or organization shall be deprived of any benefit, or be subject to any obligation” under federal law for the exercise or expression of their religious freedom on their beliefs of marriage as “the union of a man and woman….”[2] Second, the Income Tax Act was amended to explicitly state that a registered charity that is involved in the advancement of religion “shall not have its registration revoked or be subject to any other penalty”[3] for exercising its beliefs on marriage.  Third, the Supreme Court held that compelling religious officials to perform marriage contrary to their religious beliefs would violate the Charter.[4]  Diversity in Canada was thus going to be real.  Institutions that held to traditional marriage were to be treated as equals.

Diversity will be diminished should the law societies be successful.  Not only will the only Christian law school be denied to Canada but it is not beyond the realm of possibility for such a result to permit law societies to cull from its ranks those lawyers in the profession who maintain the same views as TWU on marriage.  That sounds radical.  It is.  However, in 2001, when dealing with TWU’s education degree the Supreme Court of Canada declared such logic was plausible for the College of Teachers to deny accreditation to individual teachers with similar views as TWU when it stated:

“Indeed, if TWU’s Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church.  The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected. “[5]

“The very essence of our Canadian society,” said the Supreme Court in another case, “is determined by the diversity which is permitted to flourish.”[6]

The outcome of TWU will either enrich the fertile soil of the Canadian legal and democratic landscape, or impoverish it. It will either strengthen the Canadian ethos of creativity and unity in diversity, or impose a mindset of uniformity and compulsion. It will either stunt growth, or allow the abundant flora of Canadian society to flourish.

We need to let diversity flourish.

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[1] See paragraph 3 of “Community In Covenant” https://twu.ca/studenthandbook/university-policies/community-covenant-agreement.html

[2] Civil Marriage Act, S.C. 2005, c. 33, s. 3.1.

[3] Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.), s.149.1 (6.21).

[4] Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79, at para. 58.

[5] Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31, at para. 33.

[6] Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, para. 76.