On June 15, 2018, the Supreme Court of Canada (“Supreme Court”) voted 7-2 in favour of the provincial law societies in British Columbia and Ontario, both of whom said that “they would not license graduates from Trinity Western [University] because the covenant amounts to discrimination against LGBTQ people.” By “covenant” is meant Trinity Western University (“TWU”)’s Community Covenant Agreement (“Community Covenant”). This caused a stir in the religious and non-religious world. Dr Michael L Brown, a Messianic charismatic evangelical Christian in the U.S.A., who is a very influential speaker and author, wrote a piece entitled, “Canada’s Supreme Court Rules Against the Bible,” in which he argued that “the court declared … that universities must choose between biblical standards and accreditation. Put another way, the court ruled that Christianity and higher education are incompatible.” The infringement upon religious liberty evident in the Supreme Court decision was also acknowledged by the Supreme Court justices that voted in favour of the law societies.
The decision is just another harbinger that religious freedom in Canada is suffering losses. Earlier this year, the Liberal government under Prime Minister Justin Trudeau enforced eligibility conditions for federal funding for summer jobs on religious organizations. The eligibility conditions included that such organizations must respect individual human rights, which, in the imagination of the Liberal Party of Canada, included a right to abortion (i.e., in-utero infanticide or child murder), with which many religious organizations disagreed.
Freedom in Canada, not absolute
The vote is disappointing but not so much surprising. In the United States of America, Americans have the First Amendment which protects freedom of speech and freedom of religion from government legislation. In Canada, Canadians have the Canadian Charter of Rights and Freedoms, which guarantees freedom of expression and freedom of religion, but these are not absolute. On June 19, 2017, Bill C-16, which aimed to amend the Canadian Human Rights Act (1985) and the Criminal Code of Canada (1985) received royal assent. The amendments included “gender identity” and “gender expression” as “prohibited grounds of discrimination” and prohibited grounds of “hate propaganda” (the “T,” “Q” in LGBTQ) of the Canadian Human Rights Act (1985) and the Criminal Code of Canada (1985), respectively.
Making the arguments
With today’s feelings-driven, hyper-sensitive political and social climate, that the decision came as it did isn’t very surprising. However, it is still disappointing and should be alarming, for reasons including, but not limited to, the following:
TWU reserves the freedom as a private, religious post-secondary institution of higher learning to act in accordance with its religious beliefs. TWU is not a public university, which would require it to abide by the charter in its policies; it is a private institution; an organized body of religious individuals united in a common purpose, which means that it has the same freedoms under the charter as has a private citizen in Canada, including the freedoms listed in Section 2(a) and 2(b) of the charter. These are “(a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; …” Therefore, TWU reserves the freedom as a private, religious post-secondary institution of higher learning to act in accordance with its religious beliefs. This includes forming and enforcing its own policies in accordance with those beliefs.
TWU reserves the freedom as a private, religious post-secondary institution of higher learning to admit into its community whomever it wishes. Once again, TWU is not a public university, which would require it to abide by the charter in its policies; it is a private institution, an organized body of religious individuals united in a common purpose, which means that it has the same freedoms under the charter as has a private citizen in Canada, which includes the freedoms identified in Section 2(c) and 2(d) of the charter. These are “(c) freedom of peaceful assembly; and (d) freedom of association.” Therefore, TWU reserves the freedom as a private, religious post-secondary institution of higher learning to admit into its community whomever it wishes, even if that freedom means excluding certain members of the public vis-à-vis TWU’s own criteria for membership within its community (i.e., the Community Covenant).
TWU’s Community Covenant does not “amount to discrimination” against lesbian, gay or bisexual people. The Community Covenant restricts sexual behaviour and lifestyle choices to biblical standards, but it does not discriminate against individuals on the grounds of sexual orientation. There is nothing in the Community Covenant that prohibits people from attending TWU as students nor its proposed law school because of their sexual orientation, provided that they agree to be compliant with the terms of the Community Covenant.
TWU’s Community Covenant was simply not the concern of the law societies involved in the dispute. The TWU Community Covenant is a community covenant, binding the members of the TWU community. As such, no graduate of TWU in the law profession would be bound by it nor would he be capable of binding others. He may agree with the restrictions that TWU places on the members of its community based on his religious beliefs but he would have the religious freedom as a Canadian citizen to do so.
The vote places an unjustifiable limitation on religious freedom. TWU is a private, religious post-secondary institution of higher learning; it has the same freedoms in Canada as has a private citizen. The charter states in Section 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;” Public law societies, including the Law Society of British Columbia and the Law Society of Upper Canada (Ontario), are required to abide by the charter.
However, Section 1 invokes a limitation clause, making these freedoms “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The Supreme Court decision is doubtless a limitation on the freedoms listed in Section 2(a) and 2(b) of the charter, as it allows the law societies of British Columbia and Ontario to withhold accreditation from TWU and licensing from TWU graduates on religious grounds. However, this limitation is unjustifiable because TWU’s mandatory Community Covenant is not an impediment to “a free and democratic society,” as it does nothing to infringe on the freedoms of others nor democracy. Those that attend TWU do so voluntarily and, hence, choose to voluntarily agree to, and become subject to, the terms of the Community Covenant. If you do not agree to the terms of the Community Covenant, do not attend TWU.
The vote sanctions the violation of the Canadian Human Rights Act (1985) by the law societies of British Columbia and Ontario. The Canadian Human Rights Act (1985) prohibits discrimination on religious grounds. The Supreme Court decision allows the law societies of British Columbia and Ontario to discriminate against TWU and TWU graduates on those grounds. This discrimination is unjustifiable per the charter as explained above and hence, is a violation of religious freedom.
The vote does not support “equal access to the bar and diversity.” The vote allows for ideological and, as stated before, religious discrimination in the law profession. While intending to support a diversity of identities, it censors a diversity of ideas.
Conclusion
The above are reasons enough to disagree with the Supreme Court in this matter and there are other reasons as well. The case of Trinity Western University is an object lesson for us all. Religious freedom is being unjustifiably infringed upon in Canada by the government that is supposed to protect it. This will likely not remain an isolated incident regarding a private school in British Columbia. If the government has the power to infringe upon the religious liberty of communities of faith, then there follows a risk that it may in the future infringe upon the religious liberties of individuals. For these reasons (and others), the Supreme Court judgment in this matter concerns me; I think it should concern you as well. Freedom is the only thing that makes a country such as Canada worth living in. Tyranny is the only sure alternative.
Richard Sheppard is a lifelong, native Canadian; he was born in Newfoundland and lives in Manitoba. He is also a third year student in the bachelor of arts in religious studies degree program at Burman University in Lacombe, Alberta. He plans to graduate with a BA in religious studies in 2020. He also plans to procure a master’s degree from the Seventh-day Adventist Theological Seminary at Andrews University, Berrien Springs, Michigan. He wishes to become a theology professor.
