"Charter rights are not competitors in a zero-sum game”

CLF's Supreme Court intervention
in Trinity Western

On November 30 – December 1, 2017 the Supreme Court of Canada heard two appeals concerning Trinity Western University’s proposed law school. Christian Legal Fellowship intervened in the litigation, and ED & General Counsel Derek Ross made oral submissions on its behalf.

The following is CLF’s Summary of Oral Argument filed with the Court pursuant to Rule 45 of the Rules of the Supreme Court of Canada. A video of Mr. Ross’s oral submissions, which were largely driven by numerous questions from the Bench, is available here (beginning at 19:05). 

 
Charter rights are not competitors in a zero sum game. They can be fully exercised in co-existence, as this Court recognized in 2001. And since that time, both equality rights and religious freedom have enjoyed expanding interpretations: in tandem, not competition. In the very context of expanding equality rights on the grounds of sexual orientation, religious freedom has been strongly affirmed.
— Derek Ross
 

CLF's Oral Submissions

1.      May law students and lawyers associate around shared religious beliefs in pursuit of educational and professional goals?

2.      The Law Societies say that to approve such an association at TWU would be contrary to the public interest, because of its exclusionary effect.

3.      This interpretation of the public interest has far reaching implications for the profession, and is unreasonable for at least two reasons. First, it contradicts the Charter. Second, it needlessly erodes public confidence in lawyers who hold certain minority beliefs.

 

I. The “public interest” must not contradict the Charter

4.      The Law Societies’ interpretation of the public interest must be a reasonable one. It is unreasonable to suggest that lawful exercises of Charter rights are inherently in tension with the public good.

5.      Most if not all associations protected by the Charter are “not for everybody” – they all require distinctions between those who share the group’s core commitments and those who do not. Allowing for such distinctions does not undermine non-discrimination norms, but actually “confers and protects rights”.

a.       Caldwell v Stuart, [1984] 2 SCR 603 at 626.

6.      Charter rights cannot possibly be contrary to the Charter’s values or to the public interest. This would make the Charter incoherent. The mere recognition of the rights of one group (i.e. TWU and its graduates) cannot, in itself, constitute a violation of the rights of another. The promotion of Charter rights – including s. 2(a) religious freedom, s. 2(d) association and s. 15 religious equality -  enriches our society as a whole and the furtherance of those rights cannot undermine the public interest or the very principles the Charter was meant to foster.

a.       Reference re Same-Sex Marriage, 2004 SCC 79 at para 46.

7.      Charter rights are not competitors in a zero sum game. They can be fully exercised in co-existence, as this Court recognized in 2001. And since that time, both equality rights and religious freedom have enjoyed expanding interpretations: in tandem, not competition. In the very context of expanding equality rights on the grounds of sexual orientation, religious freedom has been strongly affirmed (i.e. Tab 2: Reference re Same-Sex Marriage, paras 56-59).

a.       Trinity Western University v British Columbia College of Teachers, 2001 SCC 31 at paras 31, 34.

8.      One significant development in Charter jurisprudence since 2001 is the recognition that religious freedom protects the manifestation of beliefs through communities and institutions. Allowing communities to manifest beliefs that not everyone can or will affirm is also part of Canada’s commitment to multiculturalism. This commitment requires the state to respect the diversity of religious communities, not to obliterate disagreement or force minorities to conform to majoritarian norms.

a.       Loyola High School v. Quebec (Attorney General), 2015 SCC 12, paras 59-60

 

II. The “public interest” must not be interpreted in a way that needlessly erodes public confidence in lawyers who associate with certain religious beliefs.

9.      Denying qualified, competent, and ethical law graduates equal admission to the profession solely because of their connection with a “distinctly Christian” university is manifestly unjust; such barriers bring automatic public opprobrium for reasons completely unrelated to professionalism and competence. This not only infringes Charter rights, but undermines the public’s confidence in such graduates - and of like-minded lawyers by extension.  

a.       Green v Law Society of Manitoba, 2017 SCC 20 at paras 75, 96.

10.  The rejection of an institution because of its beliefs inevitably leads to the rejection of individuals who share those beliefs. This Court warned against this very possibility in 2001: if TWU’s community standards are a legitimate basis on which to reject its graduates, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church or organization.

a.       Trinity Western University v British Columbia College of Teachers, 2001 SCC 31 at para 33.

b.      Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25 at paras 258-260. 

11.  An independent legal profession that is truly diverse, inclusive, and reflective of Canadian society must be a place where all are free “to think, to disagree, to debate and to challenge the accepted view without fear of reprisal.”

a.       Trinity Western University v Law Society of British Columbia, 2016 BCCA 423 at para 193.

 

 

Further Reading:

  1. Watch CLF's Derek Ross present oral submissions to the Supreme Court (19:05).
  2. Read more in CLF's blog post here and CLF's intervener factum.
  3. Read a law student's report on the Supreme Court hearing.
  4. Read how CLF's arguments were reflected in the BCCA's Trinity Western decision.
  5. Read The Crux's article, "Lawyers call Canadian court case turning point for religious freedom", quoting CLF's Derek Ross