From the Roncarelli case to Trinity Western

Minority opinion in recent decision sends up an important warning flare, Peter Stockland says.

The Supreme Court majority decision against Trinity Western University is being hailed as a great legal leap forward to a bright future of progressive diversity.

But the dissenting opinion from Justices Suzanne Côté and Russell Brown bears a darker message about a return to the political habits of Quebec’s reactionary Duplessis era.

The 7-2 ruling handed down June 15 has been accurately, if superficially, reported as pitting a private evangelical Christian university in B.C.’s Fraser Valley against the rights and freedoms of sexual minorities.

Trinity Western’s bid to open a law school foundered, in the court’s judgment, on the clause in its code of conduct binding all students and staff to refrain from sex outside heterosexual marriage. Law societies in B.C. and Ontario argued the obligation discriminated against sexual minorities, and refused to accredit TWU law grads while the covenant remains. The majority of justices sided with them despite acknowledging the infringement of Charter-protected religious freedom.

In their dissent, however, Justices Côté and Brown contend the law societies had no legal right to refuse the accreditation. Their statutory mandates give them authority over lawyers who fail to meet professional standards, but law students are not yet lawyers. A law school is not a law office. Neither B.C. nor Ontario had any legal business reaching behind Trinity Western’s gate to dictate the school’s code of conduct.

This break with the majority opinion has implications for all of us, not just people of faith or sexual minorities. It turns the TWU decision into a warning flare about the dangers of granting statemandated regulatory bodies (of which law societies are only one example) the ability to use their licensing power to control and punish unpopular political or social attitudes.

To make their case, Côté and Brown reach back to the 1959 Roncarelli decision, when the Supreme Court of Canada drew a thick black line around the Duplessis government’s use of its power to cancel liquor licences as a means to punish Jehovah’s Witnesses. The dissenting justices deliberately underscore a very pointed citation from the landmark Roncarelli judgment to illustrate the pernicious effects of regulatory bodies overstepping their legal mandates to deal with unpopular opinion: “(T)here is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.”

The message is unmistakable. However noble the abstract objective might be — equality, diversity, progress — it must not be achieved by state actors acting outside their authority. It is no more acceptable, then, for the law society to deny TWU law grads accreditation than it would be for the motor vehicle office to refuse to renew a driver’s licence on the basis of unpopular opinions about climate change.

Those who dismiss such claims as Nervous-Nellyism might turn their attention to Ottawa, where a small-business group has announced a federal court lawsuit over the Liberal government’s controversy-plagued Canada Summer Jobs Program. Earlier lawsuits have cited violations of religious freedom to contest the program tying funding to positions on abortion and minority sexual rights.

Tamara Jansen, spokesperson for Free to Do Business, says, “Any government that determines what values we must hold or what positions we must express in order to access government programs is one that is involved in shocking overreach.”

Just so, Frank Roncarelli took the Duplessis government to court more than 60 years ago to operate his business without state interference because of his unpopular beliefs. Just so, Côté and Brown argue, Trinity Western should have been allowed to operate its law school without obstruction from overreaching law societies. Just so, Canadians cannot be compelled to accept “official” positions in order to do business with their own government.

Otherwise, what looked like progress toward a bright future in 1959 Quebec will quickly turn very dark indeed.

Peter Stockland is senior writer with Cardus, publisher of Convivium, and a former editor of the Montreal Gazette.