The Court of Appeal's decision statement refused to let religious freedom to be eroded, writes Peter Stockland Photo courtesy of Joe Mabel, Wikimedia Commons

Court strikes a blow for religious freedom in Trinity Western case

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  • November 10, 2016

Canadians living jam-packed lives barely have time to read their watches, much less pore over voluminous legal judgments on pressing matters of the day.

Indeed, one reason journalists are paid even better than lawyers (sarcasm) is because society has largely delegated to its scribal class the snorifying task of reading, deciphering and explaining the reams of inscrutable legalese that pour from the courts. Alas, far too many reporters cannot be bothered to read more than a given judgment’s summary paragraphs. Invariably, most combine even that minimal level of attention with the usual horse-race mentality of who won, who lost and who fell in the mud. So even this system fails us.

Exhibit A of the damage done by this failure is the Nov. 1 decision by the B.C. Court of Appeal involving Trinity Western University. The vast majority of Canadians will have no clue it exists. Only a fractional minority will appreciate its significance. Within that fraction, a portion will consider it important primarily because Trinity triumphed over the Law Society of British Columbia.

Yet the importance of the Appeal Court’s decision goes far beyond the Evangelical Christian university in B.C.’s Fraser Valley having been affirmed in its plan to start a law school on its campus. It’s much deeper than Trinity turning back the Law Society’s attempt to refuse to license future graduates of the law school. (The Law Society sought to blacklist TWU grads because of the school’s “community covenant” that obliges staff and students to abstain from sexual relations outside of heterosexual marriage.)

The Appeal Court decision (available at www.courts.gov.gc.ca) is a profound statement, in wondrously clear language, of the central and essential place religious freedom holds in Canadian society. Any democrat intent on restoring the place of religious freedom would do well to read this judgment. It should be read by all who want to counter the malicious lie that freedom of religion has become a second-rate Charter right.

Indeed, one of the most compelling benefits of reading this decision is realizing just how vigorous Canadian courts have been in asserting the importance of protecting religious freedom — and religious diversity — against claimants demanding that life of faith be pushed to the margins.

From the “Big M Drug Mart” decision in 1985 through to the 2015 “Loyola” case involving a Montreal private Catholic high school, the courts have, with some exceptions obviously, been highly attentive to the critical balancing of Charter religious rights and freedoms against other claims. Indeed, the reason the B.C. court found in favour of Trinity Western was largely the Law Society’s failure to take TWU’s Charter rights into account.

After lengthy examination of the administrative processes that were followed by the Law Society in its referendum on licensing Trinity grads, the Appeal Court justices found no real fault with the voting procedure, contrary to a lower court. Not so, however, with the treatment of Trinity’s Charter rights. There, they are adamant that wrong must be made right.

“The (Law Society leadership was) required to satisfy (itself) that adopting the results of the referendum was consistent with their duty to balance (its) statutory objectives against Charter values. (It) failed to fulfill this function and (the) decision is not therefore entitled to deference,” the five justices say unanimously.

Finding that they do not need to defer to the Law Society’s decision, the justices then tear it to shreds for failing to respect religious freedoms. They support the evolving rights of LGBTQ Canadians under the Charter. But they deem it “startling” that the governing body for lawyers in B.C. believes such sexual rights can “trump the fundamental religious freedom rights” of Trinity Western.

“The majority must not … be allowed to subvert the rights of the minority TWU community to pursue its own values. Members of that community are entitled to establish a space in which to exercise their religious freedom.”

Those words alone are worth taking time to read and re-read. So is the entire judgment for all who refuse to let religious freedom — and democracy itself — be eroded.

(Stockland is publisher of Convivium magazine and senior fellow with Cardus.)

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