Janet Epp Buckingham, one of the architects behind Trinity Western University’s proposed law school, speaks with reporters. A new charter of rights for Canada is swiftly being written, “with pride of place going to equality,” writes Paul Schratz. (CCN photo)
It’s being portrayed as a victory for equality rights. But it comes at the expense of conscience rights.
The gleeful response by many to the Trinity Western University decision parallels the Supreme Court ruling itself. Religion and conscience rights might be something we’ve had to put up with till now, but their time has come and gone.
The logic goes like this: religion somehow found its way into the Charter of Rights and Freedoms in 1982, but this is 2018 and Canada has evolved. The fact freedom of religion sits atop the charter is a mere technicality, as Father Raymond J. de Souza explains in an article for Cardus. A new charter is swiftly being written, with pride of place going to equality (Charter Section 15).
There certainly should be no concern about a human rights document emphasizing equality, the essence of which is the dignity of every human being, something reasonable Canadians can assent to.
The danger lies in making equality more than a touchstone, but an altar: faced with competing rights, as with TWU, measuring equality can get very blurry.
This is new territory. Canada’s historic, legal tradition has avoided establishing any type of pecking order when it comes to freedoms. Instead, the courts have attempted to balance and reconcile competing interests rather than enacting a hierarchy where one right trumps another.
The dissenting justices in TWU outlined this principle when they wrote, “In a liberal and pluralist society, the public interest is served, and not undermined, by the accommodation of difference.”
The law societies of B.C. and Ontario took issue with the university’s Community Covenant limiting sexual relations to a traditionally married couple. The dissenting opinion said the societies could have, and should have, accommodated TWU by accrediting its proposed law school. This would have reflected “a proportionate balancing of Charter rights” by letting the school do its thing while the law societies concerned themselves with what they should be concerned about, ensuring applicants are fit to practise law.
But what the school saw as its religious prerogative, the law societies, and ultimately the Supreme Court, interpreted as discrimination. The court settled the argument by siding with the law societies, all in the interest of “equality.”
Sadly, this is no minor change to how the charter is interpreted, or to the long history of religious freedom in Canada and how it has helped shape the very notion of equality in Canada.
Cardus has prepared a simple but informative document to help launch the new Religious Freedom Institute in Canada. An Institutional History of Religious Freedom in Canada charts the development and centrality of religious freedom in Canada.
It quotes Prime Minister Pierre Trudeau, who in 1981 during the charter debate said, “The Golden Thread of Faith is woven throughout the history of Canada from its earliest beginnings up to the present time.”
Now, when the Golden Thread of Faith is not only unravelling but being severed, Cardus details Canada’s history of religious accommodation, starting with the Quebec Act of 1774 guaranteeing the rights of Catholics in French Canada. A century later came the British North America Act, affirming the rights of religious minorities.
One online comment scoffed at the notion of a document from the 1700s having relevance today. Indeed, the progressive reaction to the TWU decision leaves little question as to where we’re headed. Religion cannot be relegated to the sidelines quickly enough, and it matters not one iota what it means to the charter, to our history of accommodating rights and freedoms, or to Canada’s Judeo-Christian tradition.
One wonders about the future of a nation that enshrines equality as its god, celebrating diversity rights, equality rights, and reproductive rights, while constraining conscience rights. Make no mistake, the Supreme Court justices, save one, acknowledged this decision infringes on TWU’s religious freedom. Their only disagreement was whether the interference was minor, as the majority held, or profound, as the dissenting justices wrote.
In the court’s estimation, equality justified trampling on TWU’s religious freedoms because the community covenant was not essential to the school’s beliefs. We’ve now reached the point where our highest court deems it has the competence and authority to rule on religious beliefs.
Taken to its logical conclusion, the court’s approach to religious practice in Canada is remarkable, troubling, and likely a taste of things to come.