Supreme Court can’t be relied on for impartiality
In 2012, Trinity Western University, a Christian university in Langley, announced its plan to open a law school. The law societies of B.C., Ontario and Nova Scotia objected to TWU’s law school because it required its students to sign a covenant that students must restrict sexual relations to those between a man and woman within a lawful marriage.
The three law societies claimed the covenant was discriminatory against the LGBTQ community. Law societies of other provinces and territories had no objections to the covenant.
This conflict pitched the freedom of religion of a Christian university, whose right is written into S.2 of the Charter of Rights, against the rights of the LGBTQ community, whose rights were read into the Charter by the Supreme Court of Canada in 1992.
The Supreme Court faced a dilemma. It had concluded in a 2001 decision in Trinity Western University v. B.C. College of Teachers that if a conflict occurs between rights, there must be a balancing of such rights so as to fully respect the importance of both sets of rights. It concluded in that previous case that TWU graduates were eligible to become teachers.
The Supreme Court — in a June 15 decision upholding the right of the law societies to reject TWU law school graduates — threw all circumspection and objectivity aside and concluded in a 7-2 decision that tolerance of LGBTQ was required by TWU, but the LGBTQ community did not have to tolerate Christians’ constitutional rights, which could be overridden.
In short, there was no balancing of rights. The court determined that LGBTQ’s rights were paramount, based on the remarkably flimsy and unsubstantiated notion that the undefined, vague and uncertain concepts of Charter “values” and “public interest” required the infringement of religious rights, which the statutory administrative body had properly applied and which was reasonable and proportionate.
In effect, the court decided that statutory administrative bodies such as law societies, human rights tribunals and licensing commissions can control the door to the public square, requiring religious organizations to operate behind their closed doors of the churches, synagogues, temples and mosques. Their beliefs could be found to be against public interest and Charter values.
The decision has far-reaching implications for faith-based institutions in Canada and their participation in society.
From now on, statutory administrative bodies are entitled to infringe on religious entities and their rights and freedoms by restricting their behaviour.
Because of this decision, there is little space left in our political culture for religious institutions to fully and equally participate in the public square since their beliefs and moral values, whether at work, in education or in politics, are now subject to determinations by administrative bodies.
This decision will lead to serious consequences in the future for religious groups in education and in regard to institutions, for instance Catholic hospitals and other faithbased endeavours.
The court in this case claimed that the law societies’ decision opposing the proposed law school was a “reasoned and proportionate balancing” of rights because it prevented the risk of significant harm to the LGBTQ community. It argued that TWU’s covenant harmed the LGBTQ community because it was degrading and disrespectful to their sexual identity.
The decision ignores the fact that there are 16 law schools in Canada with more than 2,400 spaces available, and no one is “forced” to attend the proposed TWU law school. The ruling also denies pluralism and diversity, which is supposed to be the bedrock of our society. The court erroneously claimed that the decision would have only a minor effect on TWU and would not seriously limit religious freedoms. This is doubtful, indeed.
The two dissenting judges in this case, Justice Russell Brown and Justice Suzanne Coté, pointed out that the purpose of a law society is only to ensure that law graduates are fit to become members of the legal profession. There were no such concerns present, however, about the fitness of prospective TWU law graduates. The latter were considered unacceptable because of the covenant. The dissenting judges pointed out that, “Tolerance and accommodation of difference serves a public interest and fosters pluralism” and that, “In our view, and for several reasons, resorting to Charter values as a counterweight to constitutionalized and judicially defined Charter rights, is a highly questionable practice.”
The decision shows that the public no longer can have confidence in the impartiality and objectivity of the Supreme Court of Canada. The court is not impartial, but arrives at decisions based not on law or precedent, but on the personal perspectives of the judges.
Former Chief Justice Beverley McLachlin admitted as such in the May 23, 2015, National Post when she stated: “My job is simply to listen to what the parties have to say ... to think about what’s best for Canadian society on this particular problem that’s before us, and give it my best judgment after listening to, also, my eight other colleagues ..."
This raises the question: Under what authority do the nine appointed and unaccountable judges have the jurisdiction to determine “what’s best for Canadian society?” That is the responsibility of Parliament.
The Supreme Court has reached the apex of its power. It has done so by using the Charter as a tool to manipulate decisions to broaden its jurisdiction until it has now become the final absolute authority in Canada. This has excluded the public from the decision-making process. This is not acceptable in a democratic nation.
One of the consequences of the TWU decision is that it has clarified the crisis that exists in regard to the role of the courts under the Charter of Rights.
The Notwithstanding Clause of the Charter permits parliament or the provincial legislatures to overturn or allow to continue a law to operate, notwithstanding a court ruling to the contrary. This provision, however, does not apply in the TWU case as no law was overturned. The decision was merely an interpretation of Charter rights.
Further, there is a flaw in the notwithstanding clause in that a prime minister, such as Justin Trudeau, who has placed homosexuals under his special patronage protection would, with his majority of seats, not apply the clause, even if that Charter provision were applicable.
It is apparent that the Supreme Court no longer interprets and applies the law objectively and even-handedly but believes its role is to be a social engineer or to change society according to the personal beliefs of the judges. Available documents released on the Charter reveal that Parliament never intended the courts to usurp its role, which is now taking place.
The TWU case has created a crisis. It is necessary that restraints be placed on the judges to restrict their autocratic abuse of power. It is a certainty that the judges will not willingly restrain from exercising this power.
The time has come to consider an amendment to the Charter to restrain the courts and to restore a deference to Parliament, which represents the public’s perspective. This will not be easy to achieve as the creator of the Charter, Pierre Trudeau, ensured that amendments would not be easily achievable. Under the Charter’s language, amendments can occur only if authorized by the Senate and the House of Commons and two-thirds of the province with at least 50 per cent of Canada’s population.
It will be a long journey to accomplish this, but we must start somewhere.
We cannot allow ourselves to be subjected to the tyranny of appointed judges any longer. This is especially the case when we know that religious-based organizations have now been placed in jeopardy by the TWU decision.