Canada June 26, 2018

Canada’s bishops ‘deeply concerned’ by TWU decision 

By Deborah Gyapong

Chief Justice Richard Wagner at a June 22 new conference. (CCN photo)

OTTAWA (CCN)—Canada’s Catholic bishops are raising grave concerns about the Supreme Court of Canada’s June 15 Trinity Western University decision regarding its proposed law school.

“The decision by the court effectively means that provincial law societies can discriminate against lawyers on the basis of their religious affiliation and moral values,” said the Canadian Conference of Catholic Bishops in a June 20 statement. “Furthermore, any organization is now at risk for its views on equality, diversity and inclusion if it depends on a regulatory body with a mandate to act in the ‘public interest.’"

Canada’s highest court upheld the decisions of the law societies of British Columbia and Ontario not to accredit TWU’s proposed law school because the privately funded evangelical Christian university has a community covenant that requires staff, students and faculty to abide by Christian moral principles, including abstaining from sexual activity outside traditional marriage. The court deemed the covenant harmful to the equality rights and identity of LGBTQ students.

At a news conference June 22, Canadian Catholic News asked Chief Justice Richard Wagner for his reaction to former Ambassador of Religious Freedom Andrew Bennett’s comment that the TWU decision had effectively relegated religious freedom and freedom of conscience out of Section 2 of the charter.

“Any decision that we release dealing with the Charter of Rights will bring all kinds of reactions and it’s normal and it’s good in a way because it shows that the court has decided an important issue,” Justice Wagner said, declining to comment on the ambassador’s remarks.

Asked if the court seemed to view conscience rights and religious identity as “less important than the identity of LGBT people,” as if religious identity “could be set aside outside the four walls of religion,” Justice Wagner responded, “That’s one interpretation and I respect it.”

The CCCB warned the court’s interpretation of the ‘public interest’ mandate of the law societies to deny TWU accreditation on the basis of its community covenant “has serious implications for all private faith-based educational institutions, and could have negative repercussions for religious charities and other organizations.” The CCCB also pointed out Catholics hold beliefs similar to those expressed in TWU’s covenant.

The CCCB had intervened in the TWU case, arguing before the court about the risk of establishing a hierarchy of rights in which “the equality rights of the LGBTQ community, considered in the abstract, will trump the right to religious freedom and so undermine all charter protections.”

The Evangelical Fellowship of Canada, the umbrella organization for more than three million evangelical Christians, churches and organizations, of which TWU is a member, has also joined the array of religious groups and leaders disappointed by the decision.

EFC President Bruce Clemenger pointed out the “court relied on Charter values in interpreting the authority of the law society and what public interest means.”

“As the dissenting justices forcefully argued, while charter rights are part of the constitution that has been written and passed by legislatures and Parliament, charter values are vague and not clearly formed; they are subjective and easily shaped by ideological bias,” said Clemenger.

Yet the Chief Justice sees context as crucial to interpreting the constitution and the charter. 
“The court believes and I firmly believe the constitution is like a tree that keeps on growing,” Justice Wagner told the news conference.

“We have to interpret it against the backdrop of a society that evolves. New technologies are taking us into new areas; what we need to do is take the constitution and interpret it against the backdrop of a society that has evolved.”

As the constitution evolves,” he said the courts “don’t keep to the strict definition of a word as it was 150 years ago.”

The words of the constitution and the charter are “looked at against the backdrop of an evolving society with the perspectives and outlooks and moral values of that society at the time the court is making a decision,” he said.

Justice Wagner noted that in the Carter decision that legalized euthanasia, the court made a different decision than it had years earlier while dealing with the same section of the Criminal Code and the same facts.

“Society has evolved, as has medicine,” he said. “There are moral values that link the majority of Canadians.”

Noting the Constitution Act was redrafted in 1982, Justice Wagner pointed out “attitudes can change very quickly; environments can change very quickly.”

Douglas Farrow, professor of theology and Christian Thought at McGill University, said after watching the news conference: “The conflation of rights with values, for which he and other members of the majority were roundly criticized by colleagues in the Trinity case, seems not to trouble him,” Farrow said. “But the ‘evolving moral values’ of the predominantly progressivist court over which he so happily presides means for the rest of us devolving, indeed disappearing, rights.”

“This is not the rule of law but rather the ruin of law,” Farrow said. “There is trouble ahead, trouble to which he appears blind.”

Constitutional lawyer and law professor Iain Benson, who now teaches in Australia, wrote on Facebook “not one commentator (until this Facebook post) has noted how astonishing it is that Canada’s highest court, in all its euphemistic judicializing about hurt and exclusion, simply avoided dealing with the extremely strong language from the (British Columbia Court of Appeal) about the illiberal use of law by the [LGBTQ] activists.”

“Law is in free-fall and pseudo forms of liberalist thinking have proven themselves insufficient, when testing came, to deal with the pseudo-egalitarians,” Benson warned. “The new illiberals have, for now, triumphed. You will see things now unwind. How quickly is hard to say, but the illiberal direction is clear.”

“Canada can no longer claim to be a truly open free and democratic society: or, rather, what we see in TWU is new law’s impotence in dealing with neo-Marxist identitarians united only in their hatred of religiously informed sexual morals,” Benson said. “For that is the real reason TWU had to be opposed and that is why the new moralities of abortion, euthanasia, sex, gender identity and such developments will become ‘attestations’, ‘accreditations,’ ‘licencing requirements,’ ‘public interest standards,’ ‘exemption restrictions.’ ‘conscience exercise limits,’ ‘reference requirements’ and so on in the future just as surely as the communists used ‘atheist pledges’ to exclude the religious from graduate schools or academic teaching positions.”

REAL Women of Canada also released a blistering assessment of the TWU decision. “The Supreme Court of Canada in its current decision, threw all circumspection and objectivity aside, and concluded in a 7-2 decision that tolerance of LGBTQ was required by TWU, but the LGBTQ community did not have to tolerate Christians' constitutional rights, which could be overridden.”

“In short, there was no balancing of religious rights,” REAL Women said in June 20 release. “In effect, the Supreme Court decided that statutory administrative bodies (such as law societies, human rights tribunals, and licensing commissions, etc.) can control the door to the public square, requiring religious organizations to operate behind their closed doors of the churches, synagogues, temples and mosques,” REAL Women said. “Their beliefs could be found to be against public interest and charter values.”

“This decision has removed any doubt that the public can no longer have confidence in the impartiality and objectivity of the Supreme Court of Canada,” said REAL Women. “The court is not impartial, but arrives at decisions based, not on law or precedent, but on the personal perspectives of the judges.”

  Canadian Catholic News