The year 2017 will likely go down in history as a decisive one in the struggle to define the character of religious freedom in Canada.
After four years of political and legal maneuvering and litigation, two key cases concerning Trinity Western University (TWU) and its proposed law school are now being appealed to the Supreme Court of Canada and may well be heard and decided in 2017.
The first is the decision of the Ontario Court of Appeals in June 2016 that went against Trinity Western, taking the position that law societies are the protectors of the new interpretation of public morality. Specifically, protection of equality rights for LBGTQ individuals based on Section 15 of the Charter of Rights and Freedoms that lists grounds for non-discrimination against persons.
As a result of these non-discrimination rights, certain Canadian law societies have determined not to recognize TWU Law School or accept its law graduates into their associations because TWU’s code of conduct does not sanction the gay lifestyle or homosexual marriage.
TWU’s appeal to the Supreme Court is now moving forward without opposition from the Ontario Barristers. TWU had lost the initial case in the Ontario Supreme Court.
The second is the decision of the British Columbia (BC) Court of Appeals, handed down in October of 2016, which found in Trinity Western’s favour, presenting a clear and compelling case for the protection of the religious freedom of minorities in a pluralistic democratic society, based on Section 2A of the Charter, which sets forth freedom of conscience and religion for both individuals and groups (the latter through the freedom of association).
Despite the strength of the decision, the BC Law Society has decided to appeal this decision, having also lost the original case decided at the BC Supreme Court. That case was decided more on procedural grounds, whereas the appeal dealt with both procedural and even more clearly, substantive grounds.
For TWU, these two BC decisions build on the two decisions that came down in its favour in Nova Scotia at the Supreme Court and Appeals court level. The Law Society there has decided not to appeal the decision further.
So the lines are clearly drawn.
Will Canada continue its longstanding tradition of protecting institutions with a religious identity in their hiring and provision of services—a stance currently enshrined in human rights legislation in most provinces and reinforced by the BC decision?
Or will it allow the new morality of individual non-discrimination to override this protection and force majority morality on religious minorities as per the Ontario Court of Appeals decision? Will religious freedom become a myth?
CHEC (Christian Higher Education Canada), in cooperation with the EFC (Evangelical Fellowship of Canada) will again apply to be an intervener in the Supreme Court case if it is heard.
It is possible that TWU could still open and operate its law school with BC Ministry of Education support and the national legal accreditation it has received, along with the agreement or non-objection of the other nine provincial law societies. However, if the Ontario decision were allowed to stand, TWU would have to do so under the cloud of sanction by Canada’s largest law society.
May the Lord grant much wisdom both to TWU and those who are involved in its legal defense as well as to the Justices of the Supreme Court of Canada, in whose hands this matter now rests.