Slow-mo­tion coup


National Post (Latest Edition) - - EDITORIALS - Bruce Pardy

In the clas­sic Aus­tralian film com­edy The Cas­tle, a man fights to keep his house from be­ing ex­pro­pri­ated for an air­port ex­pan­sion. His hap­less lawyer, hav­ing no idea what ar­gu­ment to make to the court, al­leges a breach of the Aus­tralian Con­sti­tu­tion. What sec­tion of the Con­sti­tu­tion has been breached, the court asks. The lawyer has noth­ing. “There is no one sec­tion,” he halt­ingly re­sponds, “It’s just the vibe of the thing.” For a gen­er­a­tion of lawyers it be­came a run­ning joke used to ridicule one another’s hope­less ar­gu­ments.

To the Supreme Court of Canada, it’s not a joke but a tech­nique. On June 15, the court ended Trin­ity Western Univer­sity’s quest to open a law school. The univer­sity had chal­lenged the re­fusal of the law so­ci­eties of B.C. and On­tario to ap­prove the school. The law so­ci­eties did not ques­tion the qual­ity of the le­gal ed­u­ca­tion to be de­liv­ered but ob­jected to Trin­ity’s “com­mu­nity covenant,” which re­quires its stu­dents and fac­ulty to ab­stain from “sex­ual in­ti­macy that vi­o­lates the sa­cred­ness of mar­riage be­tween a man and a woman.” A ma­jor­ity of the court found that the law so­ci­eties were en­ti­tled to vi­o­late Trin­ity’s re­li­gious free­dom in the name of “Char­ter val­ues.” While free­dom of re­li­gion is guar­an­teed as a fun­da­men­tal free­dom in sec­tion 2(a) of the Char­ter of Rights and Free­doms, Char­ter val­ues are found nowhere in the text. They are, yes, “just the vibe of the thing,” used by the Court to trump ac­tual Char­ter rights and re­make the Con­sti­tu­tion.

Trin­ity’s covenant, the ma­jor­ity said, im­posed in­equitable bar­ri­ers on en­try, es­pe­cially for LGBTQ stu­dents, and held that the ac­tions of the law so­ci­eties re­flected a “pro­por­tion­ate balancing” of the Char­ter pro­tec­tions at play. It may sound fair and rea­son­able but it is ac­tu­ally pro­foundly twisted. The case did not feature com­pet­ing Char­ter pro­tec­tions. Trin­ity’s re­li­gious free­doms were not pit­ted against the equal­ity rights of LGBTQ per­sons be­cause no such rights ex­isted. The Char­ter does not ap­ply against any­one but the state. As a pri­vate re­li­gious in­sti­tu­tion, Trin­ity was not sub­ject to the Char­ter or for that mat­ter to the B.C. Hu­man Rights Code. Trin­ity was the only party with Char­ter rights, en­force­able against the law so­ci­eties as agen­cies of the state. Calling the covenant an “in­equitable bar­rier” is disin­gen­u­ous. Re­li­gious com­mu­ni­ties con­sist of pri­vate per­sons gath­er­ing to­gether and agree­ing on a code to which they choose to ad­here. They im­pose those stan­dards on no one but them­selves. No one is forced to join them and no one has the right to go to their law school, which is part of a pri­vate re­li­gious in­sti­tu­tion. There is noth­ing to “bal­ance.” Un­til, of course, the court in­vokes Char­ter val­ues. You know, the vibe of the thing.

And what, pray tell, are the val­ues of the Char­ter? They are not, as one might ex­pect, the val­ues re­flected in the rights and free­doms that the Char­ter ac­tu­ally lists. If re­li­gious free­dom is a fun­da­men­tal free­dom, is the value of re­li­gious free­dom not a Char­ter value? The an­swer, ap­par­ently, is no. Turns out Char­ter val­ues aren’t the vibe of the ac­tual thing at all, but a com­pet­ing set of moral judg­ments that ex­ists in the Court’s imag­i­na­tion. The Char­ter was con­ceived and drafted as a ros­ter of in­di­vid­ual neg­a­tive rights that pro­tected against in­ter­fer­ence from an over­bear­ing state. Char­ter val­ues, as ar­tic­u­lated by the court, are col­lec­tivist val­ues of pro­gres­sives: (sub­stan­tive) equal­ity, (so­cial) jus­tice and (group) dig­nity. Char­ter val­ues are de­cid­edly not the in­di­vid­ual lib­erty val­ues of clas­si­cal lib­er­als or the tra­di­tion­al­ist virtues of con­ser­va­tives.

The bril­liant dis­sent­ing judg­ment of Jus­tices Brown and Côté calls a spade a spade: “Char­ter val­ues like ‘equal­ity,’ ‘jus­tice,’ and ‘dig­nity’ be­come mere rhetor­i­cal devices by which courts can give pri­or­ity to par­tic­u­lar moral judg­ments, un­der the guise of un­de­fined ‘val­ues,’ over other val­ues and over Char­ter rights them­selves.”

They ex­plain that the ma­jor­ity’s ap­proach “turns the pro­tec­tive shield of the Char­ter into a sword by ef­fec­tively im­pos­ing Char­ter obli­ga­tions on pri­vate ac­tors.” The ma­jor­ity’s in­vo­ca­tion of Char­ter val­ues gives li­cence to the law so­ci­eties to run roughshod over Char­ter rights in the name of the pub­lic in­ter­est, which is code for the pro­gres­sive ideals to which all must now com­port.

For years, the Supreme Court has in­sisted that the Cana­dian Con­sti­tu­tion is a “liv­ing tree” that may be adapted to chang­ing so­cial cir­cum­stances. Us­ing Char­ter val­ues, the court has taken the project to a new level. The Trin­ity Western case is the most re­cent Supreme Court de­ci­sion to slowly but surely trans­form the Char­ter from a ros­ter of lib­erty rights to a regime of un­de­fined, col­lec­tivist val­ues. The court is do­ing so on its own ini­tia­tive, with­out an amend­ing for­mula, with­out leg­isla­tive di­rec­tion and with­out a vote from the peo­ple.

It is noth­ing less than a slow­mo­tion con­sti­tu­tional coup. And that’s no joke.



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