“Fundamental Freedoms” to the Back of the Bus: Is SCC’s TWU decision Canada’s Plessy v. Ferguson? [redux]
When I first published this article several years ago, the first line read, “Canadians will be surprised to hear their country does not actually guarantee fundamental liberties like freedom of speech, freedom of association and freedom of religion. “
Today, it should come as no surprise to anyone that the depoliticalization of Canadian society, as predicted by Carl Schmitt, is the process of depowerment of a people. That process under the permanent state of medical emergency is now complete. To find the overlords, you find out where the political has gone. Coinciding with this process is the activist court working with fang-less constitution to declare all rights contingent and dependent on the convenience of the ruling class. The elites mold the masses through, inter alia, national and state goverments, NGOs, selected authorities and mainstream media, which tainted citizenry then demand that it be enslaved. We have witnessed this very clearly in last two years.
I have left the balance of this article unchanged so as not to create too many digressions and tedious updates and qualifications and caveats. What you have it a testimonial to the moment anyone with eyes to see or ears to hear could have discerned that fundamental freedoms do not exist in Canada and one better get political again, with a vengeance.
***
My country, after all, repatriated its constitution from Great Britain in 1982 and took the opportunity to have Westminster add a Charter of Rights of Freedoms, which certainly seems to guarantee these basic rights.[1]
Canadians are almost universally proud of their Charter, with current Prime Minister Justin Trudeau liberally and unilaterally adding layers of interpretation to it when he pronounces that the Charter guarantees a woman’s right to an abortion.[2] He was speaking in defence of his government’s Summer Job Program that requires an “attestation” from the applicant organization that it agrees with abortion, compelled speech. In 1988, Supreme Court of Canada (“SCC”) did strike down the then Federal abortion regime as arbitrary -- but left it to Parliament to try again. It never did. To our PM, this was just a technicality. A majority of Canadians polled support a women’s right to reproductive freedom.[3] There can be little doubt how the SCC would rule. The recent decision of Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 (TWU) proves our PM to be right, with some regrettable echoes back to the US Supreme Court decision of Plessy v. Fergusson, 163 U.S. 537.[4]
For the American reader, and many Canadians who regard our nine Supreme Court judges as our Oracles of Delphi (and thus have little interest in what the Charter actually says), the structural difference between the US Bill of Rights, and the Canadian Charter are important to understand,
Take the First Amendment to the US Constitution. It states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The US Bill of Rights has no caveat. Limits on rights require definitional qualification rather than reliance on overt external factors, such as whether a particular community is unpopular or not. Even inflammatory hate speech is protected speech, as the US Supreme Court held in Brandenburg v. Ohio[5] unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions”, quite a hurdle.
Now, consider the Canadian Charter:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [emphasis added]
[emphasis added]
Article 2 sets out the list of “fundamental freedoms”, all of equal significance to the drafters:
2. Everyone has the following fundamental freedoms:
· (a) freedom of conscience and religion;
· (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
· (c) freedom of peaceful assembly; and
· (d) freedom of association.
Equality rights get separate treatment in Article 15, but there is nothing to suggest equality will trump fundamental freedoms:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The Canadian Constitution provides the linguistic test by which a court may limit rights and freedoms. The test is whether the limit is “demonstrably justified in a free and democratic society.” The language is largely indeterminate. For example, the word “democracy” has so many historical and dictionary meanings, from “mob rule” (for which we can blame the excesses of the Athenian Empire) to a society that is “kind” as most Canadians and the SCC seem to use the word.
The high court has spent years trying to put meat on the bone, with fancy names like the “Oakes test” or the “Dore/Loyola framework”,[6] but the results have been equally indeterminate. As TWU illustrates, speculation and platitudes can stand in for a serious analysis. Utopian activism (what Americans now commonly refer to as “progressive”) can stand in for considered review of evidence. This places the SCC in the role of mother superior of rights, slapping the wrists of forces unbending to the progressive agenda. In this sense, the nine judges of the SCC function less as oracles and more like alchemists, doubling toil and trouble, as they stir the pot, in search of the elixir for a new society.
The facts in TWU were troubling long before the SCC considered the matter. Trinity Western University is an evangelical Christian school. It is no stretch to suggest that Evangelical Christians are not a popular community in Canada. Like Catholics, they have not bent to the dictates of post modernity.
Canada has no official religious voice in its legislatures. There is no religious party. Politicians who are Christians generally keep it to themselves. The best advice for any religious community in Canada is to stay quiet, stick to platitudes and generally stay out of the way. Trinity Western did not. It sought to add a law school to its religious-based community, a first in the modern era. In 2012, TWU submitted its proposal to the Federation of Law Societies of Canada and approval was granted -- subject to the BC law society’s right (the LSBC) to adopt a resolution declaring the proposed law school “not approved” (a veto).
The Trinity West proposal cast a spot light on its belief system beyond what is socially acceptable in Canada. The killer was the Community Covenant Agreement (Covenant) that all current Trinity Western students and faculty must sign.[7] It requires community members to “voluntarily abstain” from a number of actions, including harassment, lying, cheating, plagiarism, and the use or possession of alcohol on campus. It also prohibited “sexual intimacy that violates the sacredness of marriage between a man and a women.”
In this age of safe spaces, one would have thought a campus where the above was respected would be a very safe space indeed, especially for young women. Canada has had its same-sex marriage debate and such marriages are now legal. Trinity Western’s Covenant was obstinate as it blessed sexual intimacy for straight married but not gay married couples.
Trinity Western is privately funded and has operated since 1969 under a statutory mandate that it must admit qualified students of “any race, colour or creed”.[8] There was no dispute the Covenant was aimed at ensuring students, even non-Christians, conduct themselves in a manner respectful of the religious object of the school. The Covenant attracted the ire of the LGBTQ community and to the majority of Canadians sympathetic to its cause. The belief itself was regarded as unacceptable in modern Canada.
The LSBC has a limited mandate in accrediting new law schools. As noted in TWU by the two dissenting SCC judges (Cote and Brown), “Under the LSBC’s governing statute [the Legal Profession Act (LPA)[9]], the only proper purpose of a law faculty approval decision is to ensure that individual graduates are fit to become members of the legal profession because they meet minimum standards of competence and ethical concerns.”[10] The LPA, section 3, also refers to the LSBC’s “object and duty” to “uphold the public interest in the administration of justice by … preserving and protecting the rights and freedom of all persons”. Nothing in the LPA gives the LSBC the right to make rules concerning the governance of a law school. The LSBC conceded there were no concerns about the competence of the prospective TWU law students.[11] That should have been the end of the matter.
The Benchers of the LSBC initially planned to take no action. However, the outcry from lawyers in British Columbia against the Covenant put enormous political pressure on the Benchers. They eventually bowed to submitting the question of TWU’s accreditation to a referendum of lawyers in BC, putting Trinity Western community’s religious freedom a popular vote. The question for members was whether to direct the Benchers to pass a resolution that TWU was “not approved.”
I attended the voting in person in Vancouver on June 10, 2014. The atmosphere was carnival like, with opponents of the new law school evidently confident in the outcome. The vote was never in doubt with 3210 BC lawyers voting to direct the Benchers to veto the Christian law school, but with 968 (30%) still opposing.
The Benchers were obviously troubled by what to do next. They elected to hold a second mail in referendum on whether they should implement the resolution (one is reminded of Pontius Pilate’s prevarications). The results were 5910 voting to implement and 2,088 (a slightly higher 35%) opposed. The resolution passed on October 31, 2014. Despite the LSBC’s limited mandate, the sole basis for the resolution was the will of the majority.
The case then worked its way up to the SCC. TWU was successful at the BC Court of Appeal,[12] where the court found a “severe” assault on religious freedom balanced against a “minimal” impact on LGBTQ persons. The LSBC appealed. The SCC TWU decision was delivered on June 15, 2018. The majority of Abella, Moldaver, Karakatsanis, Wagner, Gascon JJ., Rowe J. (separate reasons) and the Chief Justice McLaughlin (also in separate Reasons), all had no difficulty overturning the BCCA decision and upholding the resolution of the LSBC.
The majority rejected what seemed obvious, that the LSBC had timidly exceeded its mandate and improperly fettered its discretion. The majority used the LSBC’s duty to act in the “public interest” to give it powers nowhere expressly stated in its statutory mandate:
[31] In our view, LPA requires the Benchers to consider the overarching objective of protecting the public interest in determining the requirements for admission to the profession, including whether to approve a particular law school
[34] As the governing body of a self-regulating profession, the LSBC’s determination of the manner in which its broad public interest mandate will best be furthered is entitled to deference. The public interest is a board concept and what it requires will depend on the particular context.
Despite the fact there are 19 secular law schools in Canada, no religious ones, and no evidence of likely harm to any LGBTQ persons (except morally), the majority noted:
[39] …The LSBC was entitled to be concerned that inequitable barriers on entry to law schools would effectively impose inequitable barriers on entry to the profession and risk decreasing diversity within the bar…
The majority accepted that “an entire law school would be closed off to the vast majority of LGBTQ people…. LGBTQ individuals would have fewer opportunities relative to others. This undermines true equality of access to legal education, and by extension, the legal profession.”[13] The LSBC was therefore to be commended for “preventing the risk of significant harm to LGBTQ people who attend TWU’s proposed law school.”[14] The majority never explains why 60 new law school spaces at Trinity Western do anything more than add to the total spaces available to prospective law students. Presumably, the 60 new spaces at Trinity Western would be attractive to Christians who may be equally uncomfortable in what to them may be the oppressive, secular, politically-correct atmosphere in Canadian universities. LGBTQ students could access these vacated spots, having no interest in attending an Evangelical Christian law school. The elephant in the room is that students who enjoy and wish to continue to enjoy pre-marital sex, or steal or plagiarize, etc. (a community much larger than the LGBTQ one) would be equally uncomfortable with the Covenant.
The Chief Justice’s reasons are particularly unsettling. The five majority judges considered the impact on religious freedom minimal. Justice Rowe didn’t see any breach of religious freedom at all. The Chief Justice alone among the majority recognized that a “significant” violation of freedom of conscience and religion is occurring here.[15] Her eyes are wide open. She writes: “The decision places a burden on the TWU community’s freedom of religion: (1) by interfering with a religious practice (a learning environment that conforms to its members’ beliefs); (2) by restricting their right to express their beliefs through that practice; and (3) by restricting their ability to associate as required by their beliefs”. She even questions whether barring the new religious law school contributes anything towards diversity, “given its comparatively high tuition fees, and [the question] how many, if any, LGBTQ students will be forced to go to TWU as a school of last resort…”[16]
The balance of the Chief’s reasons could be scripted to Stanley Kubrick’s “Eyes Wide Shut”. She abruptly concludes equality of the LGBTQ community trumps religious freedom: “In my view, the most compelling law society objective is the imperative of refusing to condone discrimination against LGBTQ people,”[17] arguably giving the LGBTQ community a constitutional veto over other communities. Her language suggests the subversive belief represented by the Covenant was itself noxious: “The Covenant singles out LGBTQ people as less worthy of respect and dignity than heterosexual people, and reinforces negative stereotypes against them.”[18] The LSBC was right not to “condone” discrimination and stop a practice that might have “negative consequences for the LGBTQ community, diversity and the enhancement of equality in the profession.”[19] Why this veto power of the state granted in this case to the LSBC could not be used to control statements of belief and compel speech in all private religious elementary and high schools is not at all clear.
The majority never contemplates a decision outside of the Christian context or asks why any law school with a differing religious culture at its core would not increase diversity. Presumably if the applicant school were Muslim or Sikh, one would expect a covenant that prayers be respected, even by non-Muslims, or that a covenant to ensure non-Sikh students how to be respectful which navigating the community. The entirely Christian focus of the decision reflects a distinctly western secular bias against the previously dominant religion. The obvious question of broader application is never addressed, by reason of implicit bias or embarrassment.
The majority considered it “reasonable for the LSBC to conclude that promoting equality by ensuring equal access to the legal profession, supporting diversity within the bar, and preventing harm to LGBTQ law students were valid means by which the LSBC could pursue its overarching statutory duty…”,[20] which included “upholding a positive public perception of the legal profession”. Trinity Western’s Covenant was bad PR to the law society. The majority found the limit on freedom reasonable, a proportionate balancing between the limitation on the religious protections and the implicit statutory objectives of the LSBC.
So where are the echoes to Plessy v. Ferguson? The resonance over the centuries is in the majority’s rather crude deference to “public interest” and to its willingness to override express Charter rights and freedoms if they offend nebulous and evolving cultural forces, what it calls “fundamental shared values”.
Plessy v. Ferguson is considered one of the most odious decisions in US Supreme Court history. It upheld the constitutionality of racial segregation laws for public facilities as long as the segregated facilities were equal in quality – a doctrine that came to be known as "separate but equal". In 1890, the state of Louisiana passed the Separate Car Act, which required separate accommodations for blacks and whites on railroads, including separate railway cars. Plessy who was born a free man bought a first class ticket and sat in the white’s only car.[21]
Now, it goes without saying, Blacks in the southern US in 1890 were not a privileged class, standing as an examplar of any unpopular community. It would have made a mockery of the US Bill of Rights to put Plessy’s equality rights to a vote. It was no less an outrage for the LSBC to put the rights of a minority religious community to the same.
The majority opinion was written by Justice Henry Billings Brown and the lone dissent written by Justice John Marshall Harlan. In response to the argument Louisiana was exercising its “police power” in an improper way, Justice Brown adopted a similar deferential approach adopted by our SCC in TWU:
The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class.
So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, [the state] is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances[p551] is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.
[emphasis added]
The dissenting opinion of Justice Harlan was a caution to Americans, but it sounds equally as a caution to our overreaching SCC:
If a State can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in streetcars or in open vehicles on a public road[p558] or street? Why may it not require sheriffs to assign whites to one side of a courtroom and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the State require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics?
The answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the law. Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid and yet, upon grounds of public policy, may well be characterized as unreasonable. …
… There is a dangerous tendency in these latter days to enlarge the functions of the courts by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are coordinate and separate. Each must keep within the limits defined by the Constitution. And the courts best discharge their duty by executing the will of the lawmaking power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. … however [a law is] construed, the intent of the legislature is to be respected, if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If the power exists to enact a statute, that ends the matter so far as the courts are concerned. …
… Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. … It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
Likewise, Trinity Western’s Covenant may not be reasonable or socially acceptable to the moderns, but this is no business of the court. I do recognize the irony of pointing out similarities in thinking between a case that sought to keep people apart, and a decision that forceably imposes sameness in the name of “diversity”. However, if you hitch your constitution to the wagon of majoritarianism, rights are just words. The white supremacist platitudes of Plessy reflect the attitudes of the day, no less than the platitudes of the Canadian SCC about “true equality”, “diversity” and uncomfortable speech represent the platitudes of our day. Law societies now have power to unplug any law school that governs itself contrary to the politics of the day. Will the next target be unpopular books, even the dusty ones, unpopular associations, unpopular faculty members?
The majority decision also suggests Trinity Western should be happy with a less than “optimum” freedom,[22] much as blacks were asked to accept a travel environment chosen for them by the state.
The dissent of SCC judges Cote and Brown, with its Jeffersonian eloquence, stands as a stern rebuke to the three majority opinions. The dissent concludes the LSBC acted as a mere rubber stamp of the majority of voting BC lawyers and abdicated its duty by deferring to a popular vote. The Benchers did not decide anything, they bowed to the majority: “…it is, with respect, pure historical revisionism to suggest that the Benchers believe their decision would benefit from guidance or support of the membership as a whole”.[23]
The dissent also found the majority’s relying on Charter values to block a Christian law school “troubling”. Charter values (much like Plessy’s “usages, customs, and traditions of the people”) are “amorphous and, just as importantly, undefined. “What is troubling … is the imposition of judicially preferred ‘values’ to limit constitutionally protected rights, including the right to hold other values.”[24]
The dissent notes the majority seems to be confuse “equality” with uniformity. “… [E]quality in an absolute sense is also perfectly compatible with a totalitarian state, being easier to impose where freedom is limited” [emphasis added], strong language in Canada.[25]
Tyranny of the majority is bad enough. The real tragedy of the TWU decision is the blemish it places on the legal profession. If any of the nation’s communities should have been alive to a ground swell of intolerance it should have been the lawyers.[26] The decision also highlights the danger of entrenching limits on rights in the form of the Charter’s Article 1. A shrewd judiciary ought to have interpreted fundamental freedoms broadly and restrictions on those freedoms in the most narrow possible way. Regretably, what we have in Canada is an acclaimed judicial activism wielding the enormous power of Article 1. The results so far leave much to be desired.
[1] https://www.thecanadianencyclopedia.ca/en/article/patriation-of-the-constitution/
[2] https://ipolitics.ca/2018/01/24/trudeaus-take-abortion-doesnt-protect-charter-violates/
[3] https://www.ipsos.com/en-ca/news-polls/majority-continue-support-abortion-canada
[4] https://www.law.cornell.edu/supremecourt/text/163/537
[5] https://supreme.justia.com/cases/federal/us/395/444/
[6] http://www.administrativelawmatters.com/blog/2015/03/19/reasonableness-proportionality-and-religious-freedom-loyola-high-school-v-quebec-attorney-general-2015-scc-12/
[7] https://www.twu.ca/sites/default/files/twu-community-covenant-agreement_0.pdf
[8] https://www8.twu.ca/about/our-history/1960s/1969/tjc-act.pdf
[9] http://www.bclaws.ca/civix/document/id/complete/statreg/98009_01
[10] TWU, para. 267
[11] TWU, para. 280
[12] https://www.canlii.org/en/bc/bcca/doc/2016/2016bcca423/2016bcca423.html
[13] TWU, para. 95
[14] TWU, para. 104
[15] TWU, paras 129, et seq.
[16] TWU, para. 136
[17] TWU, para. 137
[18] TWU, para. 138
[19] TWU, para. 146
[20] TWU, para. 40
[21] https://www.britannica.com/event/Plessy-v-Ferguson-1896
[22] TWU, para. 87
[23] TWU, para. 298
[24] TWU, paras 306-309
[25] TWU, para. 310
[26] Same-sex marriage is now supported by the majority of Canadians, making Trinity Western the actual minority in this case (https://www.crop.ca/en/blog/2017/207/)