By Don Hutchinson
As originally published in the National Post, January 23, 2013.
Trinity Western University’s plan to add a law school to its Langley B.C. campus has sparked a firestorm of misunderstanding about religious freedom in Canada. The deans of Canada’s existing law schools have contributed to the confusion by objecting to the new law school on the basis of TWU’s Christian orientation and its endorsement of traditional, Biblical views on marriage.
In a letter addressed to the Federation of Law Societies of Canada, Council of Canadian Law Deans president Bill Flanagan writes: “We would urge the Federation to investigate whether TWU’s covenant is inconsistent with federal or provincial law … We would also urge the federation to consider [TWU’s Christian] covenant and its intentionally discriminatory impact on gay, lesbian and bisexual students.”
Law deans should not require a refresher course on law in this area. But apparently, one is necessary.
“Freedom of conscience and religion” is the first of the listed fundamental freedoms that Canadians enjoy under the Charter of Rights and Freedoms. The Supreme Court of Canada has interpreted this constitutional guarantee to apply both to individuals and to religious communities such as religious education institutions and church congregations.
But the Charter applies only in relation to government actions as they impact Canadians. That’s why we have separate federal, provincial and territorial human-rights legislation — which apply in regard to private relationships between Canadians; individuals, corporations and the government of the jurisdiction in question. These human rights codes and acts stand independent from the Charter, but the Supreme Court of Canada has determined they are to be interpreted in accordance with the values of the Charter.
Under the Charter, the church is protected from state interference “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Government is not prohibited from engaging in a relationship with religious organizations, which it does routinely in order to accomplish its purposes in the best interests of Canadians (e.g. chaplaincy to provide for the spiritual needs of the Canadian military, the operation of shelters for Canada’s homeless, etc.).
And, as reinforced by Supreme Court of Canada decisions, particularly its 2002 decision in Chamberlain vs. Surrey School District No. 36, Canadians cannot be disqualified because of our religious beliefs from participation in the development of public policy. Thus, Canadian religious individuals and organizations are welcome to engage in Canadian politics and policy-formation.
All of which to say: The notion that the establishment of a Christian law school would somehow compromise some kind of Charter-dictated secular character is completely wrong.
In fact, in 2001, the Supreme Court of Canada determined that religious freedom applies to religious post-secondary institutions in regard to requirements made of staff and students to adhere to the beliefs and practices of the religion concerned. The court also concluded that if the school meets the accreditation requirements for instruction, and graduates meet the accreditation requirements for professional practice, then neither the school nor the graduates can be disqualified on the basis of religious belief.
The 2001 case in question was Trinity Western University v. British Columbia College of Teachers. TWU’s been here before. And it prevailed.
The Supreme Court of Canada decided in the 2004 reference re: Same-Sex Marriage that Parliament had the legislative jurisdiction to determine the definition of marriage under the Constitution. The court did not redefine marriage, but it did explicitly affirm that the government could not require religious officials to perform marriages that would violate their religious beliefs, i.e. the state cannot interfere in the operation of the church. The court went further to reinforce that “religious freedom is broad and jealously guarded in Canadian law.”
When Parliament subsequently changed the definition of marriage, it declared in the legislation that “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.” Trinity Western University therefore should not be penalized for its beliefs about marriage.
TWU has other well-regarded professional schools; a teacher’s college, business school and nursing school. If a new TWU Christian law school is or is not going to succeed, the deciding factors should be its ability to meet educational requirements, and the interest of students in attending. The only legitimate concern the law deans should have is that a law school at TWU will continue to produce graduates that correspond with the university’s hard-earned recognition as one of the best in Canada.
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Related stories:
Canadian deans accused of ‘anti-religious bias’ over attempt to block Christian law school
The case for Trinity Western University’s Christian law school