Peter Stockland: There’s a silver lining in the Trinity Western decision

  • June 21, 2018

Anyone looking for hope from the June 15 Supreme Court of Canada decision on Trinity Western University can find it shining in the pages of the judgment itself.

Not, of course, in the majority ruling wherein the justices acknowledged it would trample the B.C. evangelical school’s religious freedoms to deny graduates of its planned law school accreditation — then came down with two-ton boots anyway. As many have noted, the majority decision in Trinity Western reads less like a legal decision than the work of an angry atheist turning his tender attentions to taunting Christians.

Amid that morass is the dissenting decision by Justices Suzanne Côté and Russell Brown, which is much more than a mere silver lining. It’s a vibrant light that should attract the attention of every Canadian who treasures freedom of religion but, greater yet, for whom liberty rooted in the rule of law is paramount.

Côte and Brown brilliantly eviscerate the palliated platitudes of their fellow justices. But they offer far more than invigorating ripostes in clever legal sallies. They offer hope in the clarity of their thinking and in their commitment to the foundational importance of proper process for legally safeguarding democratic life.

Every Canadian, regardless of political, social, religious, sexual or other orientation, should read the dissent. It should not be read just to crib handy notes on why Trinity Western should have won or, alternatively, why it should have received an even worse drubbing.  It is not a facile question of gay rights versus the rights of the faithful.

No. The minority decision in TWU must be read for its insistence on a balancing of democratic rights and freedoms that scrupulously remains within an established, verifiable framework of laws. It must begin with an acknowledgement of the laws as they are, not as we wish them to become to achieve a given policy objective. That, as Côté and Brown say in so many words, is the business of politics, not the duty of the courts.

They stress, for example, that neither the Law Society of British Columbia nor Ontario’s law society had legal authority to deny Trinity law school grads licensing because of the school’s so-called Community Covenant that, among other things, limits sexual conduct to married couples in accordance with Christian teaching. The law societies exist, they show, to govern the conduct of lawyers; that is after graduation from law school.

“The powers are thus limited to the regulation of the legal profession and its constituent parts, extending no further than the licensing process — the doorway to the profession. The (statute) does not empower (the law society) to police human rights standards in law schools. Provincial legislatures … have conferred that mandate upon provincial human rights tribunals. The (law society) does not enjoy a free-standing power under its ‘public interest’ mandate to seek out conduct it finds objectionable….”

To lose sight of the essential need to keep authority within due limits risks returning, they warn, to the days of Duplessis Quebec when liquor licensing was used as a tool to control and punish — persecute? ­— Jehovah’s Witnesses.

They cite the 1959 Roncarelli decision in which Canada’s Supreme Court stopped the abuse of regulatory power, quoting: “There is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is as objectionable as fraud or corruption.”

Those are not words to be thrown like dust into the eyes of those with whom we disagree. They are a warning about a particular threat to religious freedom. More, they are a warning about where Canada is headed generally unless we return to understanding what happens when law and liberty are made captive to wishes rather than being grounded in what exists.

It is, indeed, shocking that the voices sounding such a warning are a minority on the Supreme Court and among Canadians. But great hope lies in the power of their words, their arguments, their clarity of thinking to bring our fellow citizens back to reality. For what is the meaning of freedom of religion for us as Christians unless its heart is the love of God and neighbour alike?

(Stockland is publisher of and senior fellow with Cardus.)

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