Law Matters but Politics Matter More: The Supreme Court of Canada and Trinity Western University
The following case comment was originally published in the Oxford Journal of Law and Religion 2018 7(3)
Barry W. Bussey[1]
The law on religious accommodation in Canada has been dramatically altered – to the detriment of religious freedom and diversity – by the release of the Supreme Court of Canada’s (SCC) two decisions[2] that ended Trinity Western University’s (TWU) bid for a law school. While many in the legal community have hailed this development as a great triumph for “Charter values” and the “rule of justice,” I maintain that theirs is a pyrrhic victory.[3] It is bound to lead to unintended, negative consequences for liberal democratic pluralism.
- Background
TWU is denominationally affiliated with the Evangelical Free Church of Canada. As such, TWU requires its student body and faculty to sign a Community Covenant pledging themselves to “biblical and TWU ideals,” wherein they “voluntarily abstain from” a list of activities that interfere with its evangelical Christian identity, including “sexual intimacy that violates the sacredness of marriage between a man and a woman.”[4] When TWU submitted its application for accreditation to the Federation of the Law Societies of Canada (FLSC), strident opposition arose among key organizations[5] and individuals from the legal profession. Among the first to raise the equality alarm was the Canadian Council of Law Deans (CCLD), who called on the FLSC to review TWU’s admissions requirement to ensure TWU’s Covenant was not inconsistent with federal or provincial law. “Discrimination on the basis of sexual orientation,” wrote Bill Flanagan of the CCLD, “is unlawful in Canada and fundamentally at odds with the core values of all Canadian law schools.”[6] Legal academics[7] also joined the opposition. The FLSC met the furor with a special committee to investigate, obtained legal opinions from top constitutional lawyers. After an exhaustive review the Federation decided on December 16, 2013 to approve TWU, noting that “there was no public interest reason to exclude future graduates of the program from law society bar admission programs.”[8] Federation President Marie-Claude Bélanger-Richard, Q.C., was emphatic that “[t]he Federation followed a fair, rigorous and thoughtful process.”[9]
However, the opposition fervently demanded that individual law societies “show courage” in “the pursuit of justice” by embracing the interest of equality.[10] Despite the Federation’s thorough assessment, three Canadian law societies[11] took “courage” and decided not to accredit TWU’s law school. They were convinced they were on the “right side of history” and were ultimately vindicated by the June 15, 2018 decisions[12] of the SCC. Identity politics acting in the name of equality, diversity, and justice had triumphed over the well-established religious accommodation in Canadian law.
- Decisions
- Appeal from British Columbia
In both levels of the BC Courts, the Law Society of British Columbia (LSBC) lost its attempt to justify its rejection of TWU’s law school.[13] The BC Court of Appeal (BCCA) ruled that the severe impact on religious freedom outweighed the minimal impact on the access of lesbian, gay, bisexual, transgender, and queer (LGBTQ) persons to law school. Therefore, the LSBC decision was unreasonable. “A society that does not admit of and accommodate differences cannot be a free and democratic society,” said the BCCA, warning “[t]his case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.”[14]
The Supreme Court of Canada rejected the BCCA’s decision and ruled against TWU in a notably fractured 7-2 decision, with a 5-justice majority, 2 concurring opinions, and a vigorous dissent. The majority deferred to the expertise of the LSBC, as the “gatekeeper to the profession,” in interpreting the “public interest” in the governing statute. The LSBC decided that the “public interest” required it to ensure that TWU’s admissions criteria was in line with “Charter values”. The LSBC had an overarching objective to protect the independence and diversity of the bar, prevent severe harm to LGBTQ individuals, and ensure that the public perception of the legal profession was not compromised by “degrading and disrespectful”[15] policies. The harm to religious freedom was minor because studying law in a Christian learning environment with the mandatory Covenant is merely a preferred belief and practice, not necessary for spiritual growth. But the potential harm to LGBTQ students was concrete and public confidence in the administration of justice might be undermined. The LSBC decision was reasonable as there was a proportionate balancing of the interests.
In a concurring judgement then-Chief Justice Beverley McLachlin observed that the focus should have been on Charter rights, not “values”. She argued the onus must remain on the state actor to justify a Charter infringement. She felt the infringement was not minor, since it violated a long tradition of religious schools in Canada. For her, the most compelling objective was that the LSBC’s public interest responsibility required it not to condone discrimination.[16]
Justice Rowe, alone among the 27 justices who heard the case, held there was no infringement of religious freedom because the claim imposes a belief or practice on non-believers and that is not Charter-protected. He rejected recourse to Charter “values” as being unreliable because they are undefined.
The dissent of Justices Côté and Brown emphasized the necessity for a liberal democracy to foster pluralism by accommodating difference – a responsibility which belongs to the state actor. TWU is not subject to, but is protected by, the Charter, and is exempt from human rights legislation. This is consistent with a liberal state allowing for difference. It is not for the court to worry about public perception of religious beliefs and practices, but to protect the democratic commitment to live in peace. “Public interest” in the statutory mandate is vague – and, even if interpreted broadly, would not be inconsistent with accrediting TWU, since religious accommodation advances the public interest. Côté and Brown JJ critiqued “Charter values” as “the product of the idiosyncrasies of the judicial mind that pronounces them to be so.”[17] Such “values” are amorphous, undefined and may become mere rhetorical devices for moral judgements. The unequal access to TWU’s law school that results from the Covenant is a reasonable function of accommodating religious freedom in a democracy.
- Appeal from Ontario
The Law Society of Upper Canada (LSUC) rejected TWU’s proposed law school in April 2014. TWU sought judicial review at the Ontario Divisional Court which was dismissed, as was an appeal of that decision at the Ontario Court of Appeal (ONCA). Finally, the SCC dismissed the appeal, adopting largely the same reasons outlined in the companion LSBC case.
The Ontario courts questioned whether religious protection should apply to beliefs and practices which are preferred but not required – a position which was endorsed by the SCC majority, as noted above. The SCC also echoed the Divisional Court’s objection to TWU coercing non-members into “forsaking their true beliefs”,[18] concluding, “[t]he LSUC’s decision means that TWU’s community members cannot impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm.”[19]
The SCC majority further affirmed the Ontario courts’ deference to the Law Society of Upper Canada – a point contested by Côté and Brown JJ, who, in their dissent, argued that the LSUC’s statutory mandate only applied to the licencing of individuals, and certainly did not extend to law schools outside of Ontario.[20]
In short, the legal profession was willing to ignore the law that accommodated religious universities like TWU because the professional elite no longer accepts the special legal status of religion. In other words, the legal profession is in a state of rebellion against the law with respect to religion. This rebellion was ultimately vindicated by the Supreme Court of Canada’s decisions that ruled in favour of the legal elites. Constitutional religious freedom, as once understood in Canada, has been altered by the TWU decision.
- Commentary
- The Increasing Power of Identity Politics
From the moment TWU filed its application with the Federation, the political realities of the legal profession were exposed. As noted above, the CCLD and legal academics were adamant in their disdain for TWU’s Community Covenant. “Religion” and “religious freedom” have evidently become, within the profession, regressive concepts that are associated with discrimination and inequality.[21] It is my observation that there is a legal revolution against the law’s historic accommodation of religion.[22] The TWU law school controversy is proof positive of my assertion that there is a paradigm shift underway in the profession. Until the SCC’s TWU decisions, the law has, by and large,[23] been generous in its accommodation of religious practices.[24] That is no longer the case. The growing consensus within the legal profession is that there can be no tolerance for religious views or practices that offend sexual equality claims. The ONCA’s declaration that the TWU Covenant “hurts”[25] suggests that emotive language has supplanted legal principles. There is no longer, in the legal profession, any recognition of the historical, philosophical, or practical imperatives for accommodating religious difference within a liberal democratic society.[26] A private religious community is the sole arbiter of who can and cannot be a member of its community.[27] The fact that non-members are required to abide by religious rules when seeking to be part of that community should not alter that principle.[28] Indeed, one has to question why the law societies are owed deference because of their mandate to self-define in the interests of the legal profession, but religious groups are clearly not permitted the same latitude to self-define according to their religious beliefs? Guests on private property do not get to change the lawful rules of the owner.
However, politics – sexual identity politics – have moved the conversation to mean just that: non-members are demanding the privilege of entering a private religious community, receiving all benefits, such as a university education (despite rejecting the community’s principles) and nullifying those beliefs and practices they find offensive. The advocates are adamant that the law destroy offensive difference. Entities that refuse to acquiesce to political demands are deemed discriminatory and are not permitted to operate in the public square. In short, opponents of religious accommodation require nothing less than total compliance with their social values. The BCCA declared, “there is no Charter or other legal right to be free from views that offend and contradict an individual’s strongly held beliefs.”[29] That may change.
Intentional or not, the political movement sweeping the legal community may make the currently non-existent Charter right “not to be offended” into a reality by virtue of “Charter values”. The fact the Charter does not have such language is immaterial in this new era. Politics makes all things possible just by “the vibe of the thing.”[30] The SCC has now shown itself sympathetic to sexual identity politics and creative in reaching what it deems the public desires. Recently, Chief Justice Richard Wagner referred to the long-held principle that the Canadian Constitution is “like a living tree, it evolves, so that we don’t necessarily keep to the strict definition of a word when it was drafted 150 years ago. We look at it against the backdrop of an evolving society with the perspectives, outlooks, moral values of that society, and the context in which the issue comes up at the time the Court is making its decision.”[31]
I suggest, as is evident by TWU 2018, that it is not so much Canadian society that has changed,[32] but the legal community which has changed in its views toward the law’s accommodation of religion. For example, during the LSBC benchers debate on TWU, Joseph Arvay, Q.C., declared that he was troubled that many of his fellow benchers found the Covenant offensive, but still felt they were bound by the law to accommodate TWU’s religious freedom to enforce the Covenant on non-believers that attended the university. “I don’t recognize that law, that kind of law in this country,” Avay declared. “I don’t recognize a law that is so divorced from justice that we are bound by it. We are the law; we are the law-making body charged with making a decision at hand.”[33] The SCC agreed with Arvay.
The most obvious problem with identity politics being the basis of law is that politics change. The future is unknown: what is considered to be on the “right side of history” today may not be so tomorrow. Should a new ideology take control, different from the current sexual identity power dynamic, then the law will be forced to follow its new political masters. Liberal democratic pluralism was meant to be a check against the dramatic swings of politics by accommodating, as much as possible, the religious (and other) differences of its citizens. William Galston writes, “liberal democracies rely on cultural and moral conditions that cannot be taken for granted. To remain ‘liberal,’ however, these regimes must safeguard a sphere in which individuals and groups can act, without state interference, in ways that reflect their understanding of what gives meaning and value to their lives.”[34] The SCC has chosen politics and exclusion rather than jealously guarding a place for difference.
- The Diminishing Power of Law
Law matters. For peace, order, and good government, it must matter. But it no longer appears to matter as much as the politics of the law. The rule of law has been a bedrock principle of liberal democratic countries.[35] However, if a court is more concerned with political popularity than the rule of law, then the net effect is that established law will be sacrificed on the altar of political correctness. Hence, in TWU 2018 the majority did not allow any legal rule to impede its progress towards the “right” decision of denying TWU a law school.
- Stare Decisis
Among the rules the SCC ignored was the legal principle stare decisis – the idea that a court is bound by its own previous decisions. We have come a long way from what one keen observer, in the 1950s, noted was the SCC’s penchant to be “bound by its own previous decisions, subject to the meaningless ‘exceptional circumstances’ qualification.”[36] In other words, it was rare for the SCC to oppose its previous decision(s). In recent years, the concept has met with criticism and a call to the SCC to loosen stare decisis’s grip.[37] The SCC responded with a new test.[38] Yet, in TWU 2018, not only did the SCC feel it was not bound by its TWU 2001[39] decision, it virtually ignored it. The majority did not even bother to take the time to distinguish it or apply its Bedford test.
It is ironic, therefore, after ignoring TWU 2001, (not to mention other occasions in the recent past where it overturned its own decisions,[40]) the SCC felt it necessary to repeatedly emphasize that the administrative law analyses in Doré and Loyola are binding precedents.[41] Justices Côté and Brown appeared taken aback by the majority’s insistence on that point; they observed that the majority could not even change those precedents to clarify who (the decision-maker or the claimant) had burden of proof in the analysis.[42] It seems that some cases are more binding than others. We are left not knowing why TWU 2001 was ignored by the majority in TWU 2018.[43]
- Constitutional Protection Nullified by Charter Values
TWU is not a state actor – it is a private religious university. TWU is to be protected from state actors’ decisions by Charter guarantees. Further, it is exempt from the scrutiny of human rights legislation in BC as was noted by TWU 2001, not to mention that the rights of religious communities with these beliefs and practices are referenced in the Civil Marriage Act,[44] and are protected from having their charitable status removed in the Income Tax Act.[45] Finally, these same views were protected in the SCC’s own Same-sex Marriage Reference.[46] The non-discussion of these points by the majority is telling.
So is the Majority’s refusal to address the incomprehensible ONCA decision that TWU’s Covenant violated s. 15 of the Charter.[47] As Côté and Brown JJ observed, it is “trite law” that a private actor cannot violate the Charter.[48] Yet, the majority let the Ontario decision stand without a whisper of contradiction.
The majority stated that the use of “Charter values” in constitutional interpretation is “[f]ar from controversial.”[49] However, the concurring and dissenting opinions belie that assertion.[50] If anything, the use of “Charter values” is more controversial than ever as a result of TWU 2018. Côté and Brown’s robust dissent criticized the doctrine which elevates “the idiosyncrasies of the judicial mind” to such an extent that these judicially-imposed “values” limit a constitutionally protected right.[51] A cursory look at the legal literature makes it indisputable that “Charter values” are controversial.[52] Even the ONCA has recognized that “Charter values lend themselves to subjective application because there is no doctrinal structure to guide their identification or application.”[53] This “is particularly acute when Charter values are understood as competing with Charter rights.”[54]
For all of the reasons that the concurring judgements and the dissent raise, the emphasis on “Charter values” is misplaced and worrisome for Christian institutions that hold to the same theological beliefs and practices as TWU.
- Conclusion
TWU was forced to defend itself twice over the last two decades when it sought to offer a new degree program. TWU 2001 involved the education degree; TWU 2018, the law degree. Even though TWU ought to have been protected by the Charter (as it was in TWU 2001), in TWU 2018 its protection was denied because the law societies were given the deference to apply their statutory objectives by means of “Charter values.” The net effect was a denial of the Charter right. As Côté and Brown JJ noted, s. 52 of the Constitution Act, 1982, provides for the primacy of the Constitution, meaning “that rights trump statutory objectives and decisions taken thereunder”[55] not the other way around. Neither the Charter, nor human rights legislation, nor even a SCC decision (TWU 2001) were sufficient to safeguard TWU’s religious freedom.
TWU’s experience stands as a troubling development going forward for those religious organisations that are involved in government-regulated industries. The SCC has made it abundantly clear that state actors will be given deference in carrying out their statutory mandates while balancing Charter rights. The ability of these state actors to self-define their “public interest”, as did the law societies, will mean a further expansion of government into the private sphere. What was once private has now become public.
It may be that the effects of the TWU 2018 decisions will be confined to the legal profession. I suspect, however, the ramifications will not be so limited. It is reasonable to expect state actors in other fields to be emboldened to expand their authority and only provide a cursory glance at the Charter rights engaged by their “reasonable” decisions. Even if they were to be predisposed to favour religious accommodation they will not be able, in all likelihood, to withstand the loud outcry from political activists who would accuse them of “condoning” discrimination. One only has to consider the myriad government actors that must give approval for religious organisations to operate. One of those is the Canada Revenue Agency which is tasked with registering charities to allow them to issue charitable donor receipts. During the TWU 2018 hearings the Canadian Bar Association lawyer admitted that government authorities would likely be justified in denying tax exempt status so that they do not condone discrimination.[56]
Finally, I note this decision was a failed opportunity for the Court to settle the issue of whether a religious organization has its own Charter right of religious freedom. If ever there was a case to decide the matter, this was it.
TWU 2018 illustrates the paradigm shift that has occurred in the legal profession against the law’s accommodation of religious practice. We now await the unfolding consequences of this shift as religious sensibilities are increasingly labelled “degrading and disrespectful” by a Court moved to develop its own “Charter values”. These diminish Charter rights in the guise of diversity that denies the very freedom and pluralism it claims to be implementing. Law still matters, but politics clearly matter more.
[1] Barry W. Bussey, Barry W. Bussey, BA, LLB, MA, LLM, MPACS, and a PhD student in law, University of Leiden, Netherlands (Promotor – Professor Paul Cliteur); Director, Legal Affairs, Canadian Council of Christian Charities; Adjunct Associate Professor at The University of Notre Dame, Sydney, Australia. I thank Amy Ross for her research and writing assistance.
[2] Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 (hereinafter LSBC v TWU 2018); Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 (hereinafter TWU v LSUC 2018).
[3] This was not a victory for LGBTQ rights in the sense that no one gained a right they did not have before the decisions. The only real “victors” were administrative decision-makers as their powers have increased. Further, portraying the case as equal rights v religious rights is misleading, in part because religious freedom is an equality right.
[4] Trinity Western University Student Handbook, “Community in Covenant: Our Pledge to One Another,” online <https://www.twu.ca/student-handbook/university-policies/community-covenant-agreement>, accessed 3 August 2018.
[5] Those groups include the BC Humanist Association, Canadian Bar Association, EGALE, Legal Leaders for Diversity, National Association of Women and Law, Osgoode Outlaw Students, University of Alberta Outlaws, University of Ottawa Outlaws, University of Saskatchewan Outlaws, University of Victoria Law Students, West Coast LEAF, Western Law Diversity Committee.
[6] Bill Flanagan, President of the Canadian Council of Law Deans, to Mr. J. L. Hunter and Mr. Gérald R. Tremblay, President, Federation of Canadian Law Societies, November 20, 2012, online <http://www.docs.flsc.ca/_documents/TWUCouncilofCdnLawDeansNov202012.pdf>.
[7] Elaine Craig, “The Case for the Federation of Law Societies Rejecting Trinity Western University’s Proposed Law Degree Program” (2013) Canadian Journal of Women and the Law 25:1; Elaine Craig, “TWU Law: A Reply to Proponents of Approval” (2014) 37 Dalhousie L.J. 621. Her work was referenced by a number of groups and individuals against TWU including the BC Humanist Association’s 14 August 2013 statement to the FCLS, online at <http://www.docs.flsc.ca/_documents/TWUBCHumanistAssnAug142013.pdf>, and the Canadian Bar Association in its 18 March 2013 letter to Gerald R. Tremblay, President, Federation of the Law Societies of Canada, 2.
[8] Federation of the Law Societies of Canada, “Special Advisory Committee on Trinity Western’s Proposed School of Law: Final Report, December 2013,” 19, para 66, online <http://docs.flsc.ca/SpecialAdvisoryReportFinal.pdf>.
[9] News Release: Federation of Law Societies of Canada Grants Preliminary Approval of Trinity Western University’s Proposed Law Program (Dec. 16, 2013), online <http://docs.flsc.ca/FederationNewsReleaseFIN.pdf>.
[10] Elaine Craig, “Law societies must show more courage on Trinity Western application,” The Globe and Mail, 18 December 2013, online <https://www.theglobeandmail.com/opinion/law-societies-must-show-more-courage-on-trinity-western-application/article16023053/>.
[11] The Law Society of British Columbia; The Law Society of Upper Canada (name now changed to The Law Society of Ontario); and The Nova Scotia Barristers’ Society.
[12] LSBC v TWU 2018 and TWU v LSUC 2018, supra note 1.
[13] Trinity Western University v. The Law Society of British Columbia, 2015 BCSC 2326; Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423 (hereinafter TWU v LSBC 2016).
[14] TWU v LSBC 2016, supra note 13, para 193.
[15] TWU v LSBC 2018, supra note 1, para 101.
[16] Ibid, para 137.
[17] Ibid, para 308.
[18] Trinity Western University v. Law Society of Upper Canada, 2015 ONSC 4250, 126 O.R. 3d, para 117.
[19] LSUC v TWU 2018, supra note 1, para 41.
[20] Ibid, para 66.
[21] Heather Burchill, Deputy Judge Advocate for the Canadian Forces, in her letter of opposition against TWU to the Nova Scotia Barristers’ Society stated, “Trinity’s narrow interpretation of marriage is not shared by many Christians. More to the point, Trinity’s narrow definition of marriage is not shared by the highest Court in Canada, nor by our own Provincial Legislature. … Let us not ignore that religion offers one of the few remaining pulpits from which Canadian community leaders can communicate and promote anti-LBGT messages without retribution. … Surely the connection between religious intolerance and homophobia is not lost on our profession. The history of exclusion and persecution of sexual minorities is inextricably tied to religious expression.” See: Heather Burchill (hburchill@eastlink.ca) to Rene Gallant and the NSBS (Rene.gallant@emera.com), 21 January 2014 in Nova Scotia Barristers’ Society, “Trinity Western University Submissions,” 13-16, online: <http://nsbs.org/sites/default/files/ftp/TWU_Submissions/2014-02-10_ExecPkg_TWU_Submissions.pdf>
[22] Barry W. Bussey, “The Legal Revolution Against the Place of Religion: The Case of Trinity Western University Law School” (2016). Brigham Young University Law Review. Available at SSRN: <https://ssrn.com/abstract=2951912>.
[23] The notable exception is the SCC’s very troubling decision in Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 SCR 567, 2009 SCC 37, where the SCC ruled that the Hutterite colony’s objection to their photograph being taken for the Alberta drivers’ license could not be accommodated, despite the Alberta government’s accommodation of that very thing for over 29 years. That decision was referred to by the Majority to justify its positions in the TWU law school cases.
[24] In the Reference re Same-Sex Marriage, [2004] 3 SCR 698, 2004 SCC 79, para 53, the SCC stated, “The protection of freedom of religion afforded by s. 2(a) of the Charter is broad and jealously guarded in our Charter jurisprudence.” In that case the SCC held that clergy could not be compelled to perform marriages that violated their faith – even though they were state actors. Nor were church buildings required to be used for celebration of marriages that violated the beliefs of the religious community.
[25] Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518, at para 119 (hereinafter TWU v LSUC 2016).
[26] Further, it must be pointed out that to suggest that the law societies have a duty to protect “the values of equality and human rights” which precludes them from accrediting TWU is to imply that religious beliefs are not compatible with equality or human rights/dignity. That view is distorted, and hurtful to religious adherents. It also dismisses the profound contributions of religious principles and practices to law, democracy, and civil rights. As was observed by the BCCA in TWU v LSBC 2016, supra note 13 at para 189, “the language of ‘offense and hurt’ is not helpful in balancing competing rights.”
[27] It is ironic that only a few weeks before, the SCC released a decision supporting the principle that religious communities are free to decide who can and cannot be a member: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26.
[28] This is a function of freedom of association. See Derek Ross, “Trinity Western and the Endangerment of Religious Pluralism in Canada,” The Witherspoon Institute, 22 July 2018, online <thepublicdiscourse.com/2018/07/22222/>.
[29] TWU v LSBC 2016, supra note 13, para 188.
[30] Bruce Pardy, “The Supreme Court’s TWU ruling is a cruel joke played on all Canadians,” The National Post, 29 June 2018, online <https://nationalpost.com/opinion/bruce-pardy-the-supreme-courts-twu-ruling-is-a-cruel-joke-played-on-all-canadians>/
[31] “Richard Wagner Holds First News Conference as Canada’s Chief Justice,” Headline Politics, cpac.ca, 22 June 2018, online <http://www.cpac.ca/en/programs/headline-politics/episodes/62857192>.
[32] Obviously, Canadian society has been leaving Christianity in droves as noted by Brian Clarke and Stuart Macdonald, Leaving Christianity: Changing Allegiances in Canada since 1945 (McGill-Queen’s, 2017). My point is that it is the legal community, not simply society at large, whose views have evolved. And when I consider the opposition to TWU’s law school bid I observe that it was lawyers and legal academics who were vocal – not the average Canadian.
[33] Transcript of Law Society of British Columbia Bencher Meeting, 11 April 2014, 46, online: <https://www.lawsociety.bc.ca/docs/newsroom/TWU-transcript.pdf>.
[34] William Galston, “Expressive Liberty, Moral Pluralism, Political Pluralism: Three Sources of Liberal Theory,” 40 Wm and Mary L. Rev. 869, 907.
[35] Tom Bingham, The Rule of Law (London: Penguin, 2011). The Canadian Charter specifically refers to it in the Preamble: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.”
[36] Andrew Joanes, “Stare Decisis in the Supreme Court of Canada” (1958) 36 Can. B. Rev. 175, 189.
[37] Neil Guthrie, “Stare Decisis Revisited” (2006) 31 Advoc. Q. 448.
[38] Canada (Attorney General) v. Bedford, [2013] S.C.J. No. 72, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para 42 (S.C.C.), per McLachlin C.J.: “In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.”
[39] Trinity Western University v. British Columbia College of Teachers, [2001] 1 SCR 772, 2001 SCC 31. (Hereinafter, “TWU 2001”.)
[40] For example, Carter v. Canada (Attorney General), [2015] 1 SCR 331, 2015 SCC 5 overturned the decision of Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519.
[41] LSBC v TWU 2018, supra note 1, paras 58, 59, 207.
[42] “[T]the majority’s invocation of stare decisis (“Doré and Loyola are binding precedents”) is no answer to good faith attempts in concurring and dissenting judgments to clarify precedent. A precedent of this Court should be strong enough to withstand clarification of who carries the burden of proof.” LSBC v TWU 2018, supra note 1, at para 313.
[43] CJ McLachlin did briefly reference TWU 2001. In LSBC v TWU 2018, supra note 1, para 122 she recognized parallels between the two cases (referencing freedom of association and freedom of expression) and in paras 149-50 she distinguished TWU 2001 from TWU 2018.
[44] Civil Marriage Act. S.C. 2005, c. 33. Assented to 2005-07-20, see the Preamble where it states unequivocally:
“WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs;
WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage…”
And s. 3.1 of the Act: “3.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.”
[45] Income Tax Act R.S.C., 1985, c. 1 (5th Supp.) (6.21): “For greater certainty, subject to subsections (6.1) and (6.2), a registered charity with stated purposes that include the advancement of religion shall not have its registration revoked or be subject to any other penalty under Part V solely because it or any of its members, officials, supporters or adherents exercises, in relation to marriage between persons of the same sex, the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms.”
[46] In Reference re Same-Sex Marriage, [2004] 3 SCR 698, 2004 SCC 79 (CanLII), <http://canlii.ca/t/1jdhv>, retrieved on 2018-07-20, the Court stated in paras 58-59, “It therefore seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter. It also seems apparent that, absent exceptional circumstances which we cannot at present foresee, such a violation could not be justified under s. 1 of the Charter. The question we are asked to answer is confined to the performance of same-sex marriages by religious officials. However, concerns were raised about the compulsory use of sacred places for the celebration of such marriages and about being compelled to otherwise assist in the celebration of same-sex marriages. The reasoning that leads us to conclude that the guarantee of freedom of religion protects against the compulsory celebration of same-sex marriages, suggests that the same would hold for these concerns.”
[47] TWU v LSUC 2016, supra note 25, para 115.
[48] TWU v LSUC 2018, supra note 1, para 78.
[49] LSBC v TWU 2018, supra note 1, para 41.
[50] Ibid, Chief Justice McLachlin, para 115; Justice Rowe, paras 166-175; dissent of Justices Côté and Brown, paras 307-311.
[51] Ibid, para 308.
[52] For example, see: Audrey Macklin, “Charter Right or Charter-Lite? Administrative Discretion and the Charter”, in J. Cameron, B. Berger and S. Lawrence, eds, (2014) 67 S.C.L.R. (2d), 561; Mark S. Harding and Rainer Knopff, “Constitutionalizing Everything: The Role of ‘Charter Values’” (2013) 18 Rev. Const. Stud. 141; Iain T. Benson, “Do ‘values’ mean anything at all? Implications for law, education and society” (2008) Journal for Juridical Science 33 (1): 1-22; Matthew Horner, “Charter Values: The Uncanny Valley of Canadian Constitutionalism” (2014) The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference, 67 at 361.
[53] Gehl v. Canada (Attorney General), [2017] O.J. No. 1943, 2017 ONCA 319 (Ont. C.A.), para 79.
[54] Ibid.
[55] LSBC v TWU 2018, supra note 1, para 305.
[56] Transcript of Supreme Court of Canada hearing in Trinity Western University, et al. v. Law Society of Upper Canada; and Law Society of British Columbia and Trinity Western University, et al., Volume 2, 282-283.