Trinity Western University’s Association Agreement is abominable and it hurts. So said Ontario Court of Appeal Justice James C. MacPherson on June 29. He absitively that the covenant, which requires TWU’s apprentice anatomy to accept by a affairs in accord with acceptable marriage, “is acutely abominable to the LGBTQ community, and it hurts.”
As far as he was concerned, based on that hurt, the Law Association of Upper Canada’s abnegation of accreditation to TWU’s Academy of Law was reasonable.
That is a far altered cessation from what the Supreme Court of Canada said in 2001. The Supreme Court advised TWU’s admissions action in a case involving the accreditation of TWU’s apprenticeship degree. It additionally accustomed the aforementioned hurt. Back afresh the Court was accommodating to acquiesce applicants to be affronted for the account of befitting Canada a assorted association area not anybody agrees on affairs of sexuality. The 2001 Court accustomed that TWU’s admissions claim would beggarly that “a homosexual apprentice would not be tempted to administer for admission.” If they did so it would be “at a ample claimed cost.” The Court accepted that “TWU is not for everybody,” rather “it is advised to abode the needs of bodies who allotment a cardinal of religious convictions.”
If TWU’s standards were “sufficient in themselves to absolve abstinent accreditation, it is difficult to see how the aforementioned argumentation would not aftereffect in the abnegation of accreditation to associates of a accurate church.” That was a actual acceptable point by the 2001 Court. You abjure the religious university able accreditation, because of its standards, afresh logically you charge additionally abjure associates of a abbey who authority the aforementioned angle as that university. It makes sense. It is clear.
“The assortment of Canadian society,” said the 2001 Court, “is partly reflected in the assorted religious organizations that mark the civic mural and this assortment of angle should be respected.” The Court was absorbed in advancement the abandon of Canadians to authority assorted angle and be altered — even if others are affronted — as continued as such differences did not go adjoin accessible policy. Acceptable animal moral angle were not accounted to accept beyond that line. In added words, we could be altered and still alive calm acceptance religious communities to be clashing the civil association but still abide allotment of the Canadian mosaic.
That was then. Justice MacPherson’s angle are the new now — because it is 2016 perhaps. Times accept changed. No best do those angle of the 2001 Supreme Court authority amplitude — not for the Ontario Courts and the Law Association of Upper Canada.
Justice MacPherson agreed with the Ontario Divisional Court that the Supreme Court’s 2001 accommodation is not applicative because it complex altered facts, a altered approved administration and a fundamentally altered question. However, that is a analytical position accustomed the arresting similarities amid the two cases. Consider this:
2001 TWU Apprenticeship Amount Case
2016 TWU Law Amount Case
1. TWU Amount Accreditation: Apprenticeship Degree
1. TWU Amount Accreditation: Law Degree
2. Professional Administrative Accommodation of Government Actor acting in the “public interest”: British Columbia College of Teachers
2. Professional Administrative Accommodation of Government Actors acting in the “public interest”: B.C. Law Society; Law Association of Upper Canada; Nova Scotia Barristers’ Society
3. Accusation: Potential Discrimination adjoin homosexuals by TWU acceptance suspected
3. Accusation: Discrimination adjoin LGBTQ by TWU’s Admission’s behavior — acceptance accounted competent and will not be discriminatory
4. Instrument: Association Standards
4. Instrument: Association Covenant
Lawyers are abundant at parsing distinctions. We do it for a living. The allegedly abundant acumen amid the two TWU cases is this:
In 2001, the catechism was whether the B.C. College of Teachers could ascribe TWU’s apprenticeship program, with the abominable admissions criteria, for abhorrence that TWU graduates ability discriminate adjoin gay acceptance back they taught;
In 2016, the catechism is the whether a law association can ascribe TWU’s law affairs in ablaze of TWU’s claim that applicants accept to assurance the Association Covenant.
Catch the difference? It’s there, but rather opaque.
Perhaps the accepted accessible ability be absolved for cerebration that the acumen is rather esoteric. It is. But that is absolutely not the point. The point is that politics, not law, has acquired to such a amount that the acknowledged profession is actuality pressured to abjure TWU’s law academy because “it hurts.”
Conveniently disregarded in this abstruse altercation is the actuality that the Supreme Court in 2001 did about-face its apperception to the admissions claim and ruled, as acclaimed above, that there is a amount but in Canada we are accommodating to accede to disagree and move on. That does not abate one person’s aching because of another’s abhorrent view. Rather, answerability is not the base for removing a built-in right.
What affectionate of association are we action to be back answerability becomes the account to booty abroad another’s right? At one time, the majority were so affronted by the animal action of others that rights were denied. Now the tables accept angry — those in ability are abstinent the religious abandon of those whose animal norms are centred on acceptable marriage. Conceivably we accept yet to apprentice the lesson. What if, the tables about-face afresh — as they generally do in animal history? Answerability is a poor acting for law.
TWU, clashing the Law Association of Upper Canada, is on the amiss ancillary of history — for now. “The benchers knew,” wrote Justice MacPherson, “that they were authoritative an celebrated decision.” Celebrated indeed.
When the final history of this case is accounting we will apprentice a lot about the accompaniment of the law in Canada. Whether the Supreme Court of Canada decisions accept a best shelf activity than 15 years? Whether clandestine religious institutions, not accountable to the Charter, can aback become accountable to the Charter by an aberrant means? Whether we are a country that has a advantage of religious angle or whether the religious citizens charge all accord acceptance to the state’s analogue of animal morality?
History will additionally be afflicted as the Charter becomes the “blueprint for moral conformity” as Justice Jamie S. Campbell warned in his Nova Scotia decision. Justice MacPherson’s accommodation has the aftereffect of saddling clandestine religious organizations with the accountability of the Charter as is the government. Under such a regime, animal rights legislation becomes redundant. All clandestine entities charge ensure absolute equality. No added distinctions. That anticipation will now claiming the actual angle of Canada’s plural society. Religious communities can no best await on the aegis of the Charter for their appropriate to convenance their characteristic religious faith. A government agency, such as the Law Association of Upper Canada, now has the abounding amplitude to actuate what religious convenance is “reasonable,” and do so based on abstract accepted assessment of what is offensive.
This is a absolute afterlight of our law. It is a absolute afterlight of the Built-in aegis of religious freedom. Welcome to the appropriate ancillary of history…. area the affronted booty abroad religious freedom.
Barry W. Bussey is Director of Acknowledged Affairs of Canadian Council of Christian Charities. He blogs at lawandreligion.org.
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