A SUPREME COURT DECISION LAST WEEK AGAINST TRINITY WESTERN UNIVERSITY WAS SEEN BY MANY AS A BLOW AGAINST RELIGIOUS FREEDOM IN CANADA. THAT CHARTER RIGHT IS ALSO BEING PUT TO THE TEST OVER AN ATTESTATION DEMANDED BY THE LIBERALS.
Trinity Western University ruling bodes ill
OTTAWA • Among those who watch the Supreme Court of Canada closely, Trinity Western University’s loss last week was another sign the justices are increasingly unlikely to rule on the side of religious freedom. That could mean trouble for what’s likely to be the next major decision on religious freedom to come before Canada’s appellate courts — the Canada Summer Jobs attestation. Various groups have filed challenges against the attestation that requires applicants to declare respect for reproductive rights and other “values underlying the Canadian Charter of Rights and Freedoms.”
The Trinity Western decision saw a 7-2 majority of Supreme Court justices approve the ability of law societies to deny accreditation to the evangelical Christian law school, which has a “community covenant” that confines sexual relations to between married men and women.
There is little doubt how that was received in the Prime Minister’s Office, as top adviser Gerald Butts immediately posted a link to the decision on Twitter and added the tag “#CanadaSummerJobs.”
Law professors who scrutinized the Trinity Western University (TWU) case generally agreed that it bodes ill for those fighting the summer jobs attestation on religious freedom grounds — though some felt the cases are different enough that the effect would be minimal. “My short answer to your question is yes, I do think the decision provides a rationale on which the government could rely to defend its insistence on the summer jobs attestation,” said Faisal Bhabha of Osgoode Hall Law School. “The court appears to say that if government finds that religious views are inconsistent with the public interest, the state is justified in limiting constitutional freedom,” he said. But he added: “The public interest is a concept easily imbued with the political flavour of the day.” “I suspect that the majority judgment in TWU makes the claim that the summer grant requirement breaches s. 2(a) more difficult,” said the University of Windsor’s Richard Moon, referring to the Charter’s religious freedom protection.
He said the case will likely hinge on what counts as protecting the public interest, and whether that entitles the government to “condition its summer grants in order to ensure respect for certain fundamental rights.” Moon said a lot will depend on how the justices interpret the purpose and scope of the attestation.
One major difference between the two cases is that the Trinity Western situation involved a decision of law societies, which are self-governing professional bodies, while the attestation is a direct action by the government. “The TWU case is complicated by being about agencies outside of governments themselves — part of what happens is that the court defers to the balances struck by the law societies in a way that it wouldn’t similarly defer to a government decision,” said Dwight Newman of the University of Saskatchewan. “So from that perspective, I don’t think it has any immediate implications for the summer jobs context where government action is directly at issue.” But he said there may still be a slight effect due to the “general weakening of the scope of religious freedom in the case.”
The University of Victoria’s Mary Anne Waldron said she personally thinks the summer jobs attestation is unconstitutional, but said the Supreme Court has not been consistent on how it treats religious freedom and the Trinity Western case shows that moral values (“values that apparently exist in the mind of the courts and the executive of the Law Societies,” she said) can get preference over Charter rights.
“All this leaves the outcome in the Charter challenge to the attestation clause less than clear,” she said.
At Dalhousie University’s law school, Elaine Craig takes the opposite view of the attestation, but doesn’t think the Trinity Western case will affect the challenges.
“The attestation is, in an ideal world, simply a factual statement regarding the government’s legal obligations under human rights and constitutional law,” she said. “I don’t see anything in the TWU decision which is particularly relevant, although the court’s recognition of the value of diversity certainly seems to be consistent with the purpose underpinning the attestation.” Although religious groups have generally taken the lead in opposing the summer jobs attestation, others — such as the B.C. Civil Liberties Association — have also opposed it on free speech and equality grounds.