Saturday, August 19, 2017

A very difficult balancing act; association via religious rights trumps individual rights

Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423 (CanLII) is a very difficult case. (see also Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518 (CanLII));  the BCCA describes the dispute as being:

[2]           The question before the Court is whether the Law Society’s decision was reasonable. Answering that question requires us to consider conflicting and strongly-held views, and to reconcile competing rights. On one side are the rights, freedoms and aspirations of lesbian, gay, bisexual, transgendered and queer (LGBTQ) persons and their place in a progressive and tolerant society; on the other are the religious freedom and rights of association of evangelical Christians who sincerely hold the beliefs described in the Covenant and nurtured by TWU.

The impact of the appeal of this case to the SCC will be wide reaching.  When will individual rights be forced by our Constitution to be shuttered in the face of religious expression.  Will this mean that no matter how oppressive the expression of the religious right is that individuality will be suppressed?

The BCCA stated:

[114]     It bears emphasizing at the outset that under the Charter, “[n]o right is absolute.” Each must be measured in relation to other rights and with a view to the underlying context in which the apparent conflict arises (S.L. at para. 25). Where freedom of religion is concerned, this fact distinguishes the Charter from the First Amendment to the U.S. Constitution, which expresses freedom of religion as an absolute right. As Professor Ogilvie observes, s. 15 of the Charter “reduces religion to one of many categories vying for ‘equality’”; and s. 1 gives courts the right to qualify freedom of religion by “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (at 135). Thus, Ogilvie writes, “[e]ffectively, the Charter reduces and relativizes religious freedom and gives courts the power to select and balance other countervailing claims” (at 135).

[131]     While the parallel between Loyola and the present case is not exact, in that the state’s accommodation of religious freedom in Loyola did not have a direct detrimental impact on the equality rights of others, the requirement of minimal infringement and proportionality pertains. In addition, the context of the decision made in Loyola is similar: “how to balance robust protection for the values underlying religious freedom with the values of a secular state” (at paras. 43-46):

Part of secularism, however, is respect for religious differences. A secular state does not — and cannot — interfere with the beliefs or practices of a religious group unless they conflict with or harm overriding public interests. Nor can a secular state support or prefer the practices of one group over those of another: Richard Moon, “Freedom of Religion Under the Charter of Rights: The Limits of State Neutrality” (2012), 45 U.B.C. L. Rev.497, at pp. 498-99. The pursuit of secular values means respecting the right to hold and manifest different religious beliefs. A secular state respects religious differences, it does not seek to extinguish them.Through this form of neutrality, the state affirms and recognizes the religious freedom of individuals and their communities. As Prof. Moon noted:

Underlying the [state] neutrality requirement, and the insulation of religious beliefs and practices from political decision making, is a conception of religious belief or commitment as deeply rooted, as an element of the individual’s identity, rather than simply a choice or judgment she or he has made. Religious belief lies at the core of the individual’s worldview. It orients the individual in the world, shapes his or her perception of the social and natural orders, and provides a moral framework for his or her actions. Moreover, religious belief ties the individual to a community of believers and is often the central or defining association in her or his life. The individual believer participates in a shared system of practices and values that may, in some cases, be described as “a way of life”. If religion is an aspect of the individual’s identity, then when the state treats his or her religious practices or beliefs as less important or less true than the practices of others, or when it marginalizes her or his religious community in some way, it is not simply rejecting the individual’s views and values, it is denying her or his equal worth. [Footnote omitted; p. 507.]

Because it allows communities with different values and practices to peacefully co-exist, a secular state also supports pluralism. The European Court of Human Rights recognized the relationship between religious freedom, secularism and pluralism in Kokkinakis v. Greece, judgment of 25 May 1993, Series A No. 260-A, a case about a Jehovah’s Witness who had been repeatedly arrested for violating Greece’s ban on proselytism. Concluding that the claimant’s Article 9 rights to religious freedom had been violated, the court wrote:

As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. [p. 17]

See also Metropolitan Church of Bessarabia v. Moldova, No. 45701/99, ECHR 2001-XII.

This does not mean that religious differences trump core national values. On the contrary, as this Court observed in Bruker v. Marcovitz, 2007 SCC 54 (CanLII), [2007] 3 S.C.R. 607:

Not all differences are compatible with Canada’s fundamental values and, accordingly, not all barriers to their expression are arbitrary. Determining when the assertion of a right based on difference must yield to a more pressing public interest is a complex, nuanced, fact-specific exercise that defies bright-line application. It is, at the same time, a delicate necessity for protecting the evolutionary integrity of both multiculturalism and public confidence in its importance. [para. 2]

Or, as the Bouchard-Taylor report observed:

A democratic, liberal State cannot be indifferent to certain core values, especially basic human rights, the equality of all citizens before the law, and popular sovereignty. These are the constituent values of our political system and they provide its foundation.

(Gérard Bouchard and Charles Taylor, Commission de consultation sur les pratiques d’accommodement reliées aux différences culturelles, Building the Future: A Time for Reconciliation (2008), at p. 134.) 

[Emphasis added.]

[132]     We have quoted at length here because in our view state neutrality and pluralism lie at the heart of this case.

[159]     The decision of the Supreme Court of Canada in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 (CanLII) is relevant here. That decision was considered by John B. Laskin, who provided an opinion to the Federation during its consideration of TWU’s application. We reproduce and adopt this portion of that opinion (which in general supported the applicability of TWU v. BCCT to today’s context):

In Whatcott, the Court addressed the constitutional validity of the prohibition of hate speech in Saskatchewan human rights legislation. It was alleged that certain flyers distributed by Whatcott infringed the prohibition by promoting hatred on the basis of sexual orientation; Whatcott maintained that the flyers constituted the exercise of his freedom of expression and freedom of religion. The Court saw the case as requiring it

to balance the fundamental values underlying freedom of expression (and, later, freedom of religion) in the context in which they are invoked, with competing Charter rights and other values essential to a free and democratic society, in this case, a commitment to equality and respect for group identity and the inherent dignity owed to all human beings.

In striking this balance, which resulted in its severing certain portions of the prohibition but upholding the remainder, and finding the conclusion that there was a contravention of the legislation unreasonable for two of the four flyers in issue and reasonable for the other two, the Court stated that “the protection provided under s. 2(a) [the freedom of religion guarantee] should extend broadly,” and that “[w]hen reconciling Charter rights and values, freedom of religion and the right to equality accorded all residents of Saskatchewan must co-exist.” It also referred to the “mistaken propensity to focus on the nature of the ideas expressed, rather than on the likely effects of the expression.”

Just as in BCCT, the Supreme Court in Whatcott found the proper balance point between equality and freedom of religion values to be the point at which conduct linked to the exercise of freedom of religion resulted in actual harm. Absent evidence of actual harm, it held in both cases, freedom of religion values must be given effect. 

4.4 Conclusion on Charter Balancing

[190]     The TWU community has a right to hold and act on its beliefs, absent evidence of actual harm. To do so is an expression of its right to freedom of religion. The Law Society’s decision not to approve TWU’s faculty of law denies these evangelical Christians the ability to exercise fundamental religious and associative rights which would otherwise be assured to them under s. 2 of the Charter.

[191]     In light of the severe impact of non-approval on the religious freedom rights at stake and the minimal impact of approval on the access of LGBTQ persons to law school and the legal profession, and bearing in mind the Doré obligation to ensure that Charter rights are limited “no more than is necessary” (para. 7), we conclude that a decision to declare TWU not to be an approved law faculty would be unreasonable.

[192]     In our view, while the standard of review for decisions involving the Doré/Loyola analysis is reasonableness and there may in many cases be a range of acceptable outcomes, here (as was the case for the minority in Loyola) there can be only one answer to the question: the adoption of a resolution not to approve TWU’s faculty of law would limit the engaged rights to freedom of religion in a significantly disproportionate way — significantly more than is reasonably necessary to meet the Law Society’s public interest objectives.

[193]     A society that does not admit of and accommodate differences cannot be a free and democratic society — one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal. This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.[Emphasis added; footnotes omitted.]