In a decision that has surprised many lawyers, the Supreme Court of Canada has denied 17 applications (comprising 23 groups, as a number of groups filed jointly) intervener status in the landmark case of Trinity Western University (TWU) School of Law. Canadian Council of Christian Charities was among the applications denied.

An Overview of the Case

The TWU Law School Case has gained national and international attention, as it involves equality rights between religion and sexuality, as well as religious freedom, not to mention administrative law matters. TWU requires its students to sign a Community Covenant Agreement that expects the students to keep the university’s code of conduct, which includes the requirement that they engage in sexual activity only when it is confined to a marriage between one man and one woman.

This was deemed discriminatory against the LGBT community by the law societies in Nova Scotia, Ontario and British Columbia. TWU won its litigation against two law societies (in Nova Scotia and British Columbia and in both cases winning with a 5-0 margin) but lost in Ontario (3-0).

The appeals from the decisions of the British Columbia and Ontario Courts of Appeal are now before the Supreme Court of Canada. The Nova Scotia Barristers’ Society did not appeal its loss at the Nova Scotia Court of Appeal. Canada’s highest court will hear both the BC and Ontario appeals on November 30, 2017.

9 of 32 Groups Granted Intervener Status

With only one day set for the hearing, the Court did not have the time to hear all 32 groups (26 applications). The Court would want to make sure that there were no overlapping arguments from multiple groups, and that both sides have equal opportunity to have their respective issues heard.  Perhaps the court saw no need to hear the arguments of some groups. In the end, the Court granted intervener status to only 9 groups.

There are some common features of those nine groups:

• 7 of the groups were related to the legal profession in some capacity, such as the Christian Legal Fellowship and the Canadian Bar Association.
• 2 of the 9, the Association for Reformed Political Action (ARPA) and the National Coalition of Catholic School Trustees, were not associated with the legal profession. ARPA will be addressing its arguments on the relationship between the equality rights (s.15 of the Charter) and religious freedom rights (s.2(a) of the Charter).

Groups Denied

None of the various LGBT groups that applied were granted intervener status at the Court.  The Court may have concluded that the two law societies are adequately advancing the LGBT groups’ arguments.  Indeed, it was the opposition from the LGBT advocates that successfully persuaded the three law societies to reject the approval of TWU by the Federation of Law Societies Canada.

All three accepted the LGBT arguments that TWU’s admissions policy was discriminatory and, though TWU would provide competent legal education to its students, that policy was sufficient reason to deny TWU Law School accreditation.

Evangelical Fellowship of Canada, the Seventh-day Adventist Church in Canada, Canadian Council of Christian Charities, the Canadian Conference of Catholic Bishops and the Roman Catholic Archdiocese of Vancouver are among the religious communities that were denied intervener status.

Enough on the Record?

Given the positions of TWU, and the religious interveners in the lower courts, perhaps the Supreme Court was of the view that there is enough on the record for the judges to mull through, and that the various arguments and counter-arguments were enough for justice to be served in this matter.

Nevertheless, while this case had the most (or close to it) intervention applications in the history of the Supreme Court of Canada, to grant only 9 out of 26 applications (comprising 23 groups) is significant. It will keep the legal profession talking about this for years to come. The hearing on November 30, 2017 will be fascinating to watch. Stay tuned.

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MacDonald suggests that religious groups are involved in “anti-gay activities” by “going to court to ensure their right to discriminate against gays in hospitals and schools and other religiously affiliated institutions.” This is part of creating a culture, according to MacDonald, that makes it possible for the Orlando bloodbath.

However, that suggestion is, in my view, overstating the case. As one scholar noted, “Contemporary mass media often interpret particular events as emblematic of bigger problems.”[2] MacDonald did just that. Scholars will be debating the Orlando massacre for years to come. It is not as simple as MacDonald suggests. As time goes on we will find out more about the complexity of the Orlando killer – recent reports suggest he was a troubled individual, violent to his wife, and had his own sexual identity issues within a complicated matrix of radical religious views.[3]

Christian institutions are an extension of their religious communities. They carry out their religious beliefs in the practical day to day affairs in an attempt to alleviate human suffering. They are motivated by the Christian principles of serving unconditionally. Are they perfect? No. Can they do better? Of course. Yet, it must be said that to suggest that such religious communities who want to maintain their religious views of marriage within their communities in accordance with their religious practices are implicated in the Orlando mass shooting is a stretch too far.

Consider for a moment, because X does not agree with how Y lives her life does not give X the right to kill Y. In other words, my right to exist and live my life without fear is an inalienable right as a member of humanity. It is not dependent upon my identity nor my religious beliefs. Religion never has a right to justify such killing.

There has been so much killing on this planet over religion that it is mind-boggling. It is nauseating to the extreme. Because of the violence experienced in the religious wars and persecutions of Europe in the 16^th and 17^th Centuries we have developed a form of government that we refer to as “western representative democracy.” Our western democracies have been, to date, the most successful form of government that has allowed the greatest amount of individual freedom while, at the same time, providing for civil peace.

Our society is not perfect. We have a ways to go but we have been moving forward. One of the chief cornerstones of our method of building community has been the right to believe or not to believe, practice or not to practice, religion.

The very core of who we are is identified with what we hold to be true as we struggle to answer the fundamental questions: “Who are we?”  “Why are we here?”  “What are our responsibilities and duties?” “Where are we going?”

We do not all agree with the answers of those fundamental questions. We give ample room for disagreement. But even then we have accepted a certain level of dissonance as the price we pay to live peacefully in our free and democratic society where minorities are protected against majorities’ whims.

The heinous crime of Orlando is that: heinous. It goes against all that we have come to appreciate about living in our society. Violence against one group is violence against all. The racially motivated violence committed against the church members gathered for a prayer meeting in Charleston, South Carolina is no different than the anti-gay violence of Orlando, Florida. It is hate. Since the time Europeans burned heretics at the stake we have, as a free and democratic society, said such violence was evil. And so it is. And so it will remain.

From the moment the Orlando tragedy came to light religious communities swung into action not only to condemn the carnage but to assist with the care of the grieving.[4] That is when we see religion at its best – caring for all despite our differences on life. Everyone deserves to be treated as we would want others to treat us. Love, not hate, is the motivator of true religious expression.

Our society has always struggled to find a place for people of very different views on how we ought to live and what it means to be human. It is a struggle worth having. If we are going to be successful in having a multi-cultural community where everyone is given the same opportunity to live out our understanding of the deep, conscientiously held convictions, then we will require respect for the humanness of the other.

The Orlando disaster is a time to lend a helping hand to alleviate the pain and suffering of our neighbours. Neighbours who may think differently  Neighbours who may live differently. But neighbours all the same.

[1] http://www.cbc.ca/news/politics/orlando-religion-anti-gay-bigotry-1.3631994

[2] Joel Best in his book review of The Montreal Massacre: A Story of Membership Categorization Analysis by Peter Eglin, Stephen Hester, in the American Journal of Sociology, Vol. 110, No. 2 (September 2004), pp. 520-521, online: http://www.jstor.org/stable/10.1086/425399

[3] http://nypost.com/2016/06/13/shooter-used-to-visit-orlando-gay-club-use-gay-dating-apps/

[4] Pastor says victims’ families are mostly Hispanic http://www.washingtonpost.com/blogs/post-nation-live/liveblog/live-updates-orlando-shooting/?tid=ss_tw#934c610e-c6cc-40fa-80f8-edf20e319819

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The main thrust of his argument is that TWU should lose its charitable status because of the Community Covenant which requires students to respect marriage exclusively as a covenant between one man and one woman.  He reasons that TWU is publicly funded since it receives charitable donations and its activities are against public policy.  His reasoning is flawed as it violates both Canada Revenue Agency’s (CRA) policy and the charity law upon which that policy is based.

First, Templeton says that because a charitable gift enables the donor to receive a tax subsidy offsetting part of their contribution, the receiving charity is publicly funded.  That leap of reasoning has yet to find any favour at all in Canadian law.  Private donors, not government, contribute to registered charities.  The fact that there is a tax benefit to donors hardly makes a charity a publicly funded entity.

The legal mechanism whereby government gives donors tax credits for their donations to charities serves as an incentive to engage the public in charitable giving because charities contribute to the public good.  The state does not own these entities, nor is the government working through charities as a hand in a glove.  Government merely regulates them, just like it regulates every other segment of Canadian society.  The government does not fund charities. It gives donors a non-refundable tax credit, not a tax benefit.  In other words, the government does not pay anyone the tax credit that is not claimed.

The goal for arguing that charities are “publicly funded” is to make the Charter apply as if charities were government. If that were so, the Catholic Church, by refusing to ordain women, would violate the Charter.  Or, if a LGBTQI charity refused to hire a religious person with different beliefs on sex, it too would violate the Charter.  The fact remains charities are not government – nor should they be.

Templeton also argues that TWU should lose its charitable status because it is in “pursuit of activities contrary to public policy.”  Templeton’s reasoning fails on at least two points.  The first is the CRA guidance which states that “if a charity has the standing to do so as a party or intervener, it can challenge the [government policy that is inconsistent with established human rights law] through the court system.”[ii]  Seeking to uphold religious freedom is certainly within that guidance and not contrary to public policy.

Further, and most persuasively, the federal Civil Marriage Act and Income Tax Act address this matter very clearly and conclusively.  The Civil Marriage Act specifically provides that nothing in the Act affects the guarantee of religious freedom of members of religious groups to hold and declare their religious beliefs on marriage.  In Section 3.1, it states that it is not against the public interest to hold and publicly express diverse views on marriage. As if that alone did not settle the matter, section 149.1 (6)(21) of the Income Tax Act, which was added to ensure that an argument like Mr. Templeton’s was not the cause for charitable deregistration, states that a registered charity with a stated purpose of advancing religion would not be penalized because it exercises its religious freedom in relation to marriage between persons of the same sex.

How then can Templeton even suggest that TWU should lose its charitable status in light of the law?  Certainly not by the law itself.

These views are troubling.  The fact that Templeton does not like TWU’s Community Covenant, to restate Justice Campbell of the Nova Scotia Supreme Court, does not make it illegal or uncharitable. Rather, the Covenant is both perfectly legal and perfectly charitable. Templeton’s arguments, on the other hand, are a denial of Canadian legal reality, and as such, must fail.

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[i] http://www.cba-alberta.org/Publications/Law-Matters/Law-Matters-Summer-2015.aspx

[ii] CRA, Upholding Human Rights and Charitable Registration, guidance is found at:  http://www.cra-arc.gc.ca/chrts-gvng/chrts/plcy/cgd/hmn-rghts-eng.html

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