Law Society of Upper Canada, Statement of Principles on Respect for Religious Beliefs

From “The Law Society of Upper Canada, Respect for Religious and Spiritual Beliefs: A Statement of Principles of the Law Society of Upper Canada,” March 10, 2005, at pages 23 and 24, paragraphs 49-52:

under siege HR

The incidents of religiously motivated discrimination and hatred outlined in this report and the Canadian and international condemnation of discrimination and hatred based on religion reinforce the importance for the Law Society to adopt a Statement of Principles that recognizes religious diversity.

Therefore, the Law Society adopts the following Statement of Principles.

The Law Society of Upper Canada, recognizing that:

a. Respect for religious diversity advances the cause of justice;

b. The rule of law is enhanced when religiously motivated discrimination or hatred is not tolerated;

c. There continues to be a disturbing number of incidents of religious discrimination and religiously motivated hate crimes in Ontario and in Canada, as well as in the world;

d. The laws of Ontario and Canada guarantee freedom of conscience and religion, and prohibit discrimination and the wilful promotion of hatred on the basis of religion or creed;

e. The international community has condemned religious discrimination as harmful and unacceptable, and has recommended that measures be undertaken to combat religious hatred and discrimination; and

f. Although particular groups may be frequent targets of religious discrimination, religious hatred and discrimination is a problem of Canadian society as a whole;

The Law Society of Upper Canada condemns in the strongest terms all manifestations and forms of hatred and discrimination based upon religious and spiritual beliefs. Although current circumstances centre predominantly on issues of anti-Semitism and Islamophobia, the Law Society condemns all forms of religious intolerance directed at any group or community.

The Law Society of Upper Canada undertakes to promote and support religious understanding and respect both inside and outside the legal profession.

Lawyers Won’t Bow To Law Society

Originally posted at Convivium.ca on October 2, 2017.

Thirty-six years ago, negotiations between Canada’s federal and provincial governments about the patriation of Canada’s constitution followed on the heels of a close referendum over the potential separation of Quebec. It was Ontario’s Bill Davis who led a group of premiers insisting the preamble to the nation’s proposed constitutional guarantee of human rights acknowledge “Canada is founded upon principles that recognize the supremacy of God and the rule of law.”

Don Hutchinson

Don at the Supreme Court of Canada

The sitting Prime Minister’s opinion was expressed to his caucus as, “I don’t think God gives a damn whether he’s in the Constitution.” Pierre Trudeau may have had a point, but Davis’ position carried the day in the Constitution Act, 1982 .

In addition to affirming an expansive understanding of religious freedom for individuals andreligious organizations under the Canadian Charter of Rights and Freedoms in more than a dozen decisions, the Supreme Court of Canada has commented specifically on the language in the preamble, stating:

… the preamble to the Charter itself establishes that “… Canada is founded upon principles that recognize the supremacy of God and the rule of law”. According to the reasoning espoused by Saunders J., if one’s moral view manifests from a religiously grounded faith, it is not to be heard in the public square, but if it does not, then it is publicly acceptable. The problem with this approach is that everyone has “belief” or “faith” in something, be it atheistic, agnostic or religious.

To construe the “secular” as the realm of the “unbelief” is therefore erroneous. Given this, why, then, should the religiously informed conscience be placed at a public disadvantage or disqualification? To do so would be to distort liberal principles in an illiberal fashion and would provide only a feeble notion of pluralism.

The key is that people will disagree about important issues, and such disagreement, where it does not imperil community living, must be capable of being accommodated at the core of a modern pluralism. [Justice Gonthier, endorsed by Chief Justice McLachlin, in the 2002 decision in Chamberlain v. Surrey School Board .]

As the fall session of the Supreme Court begins its sittings, the Government of Ontario and the Law Society of Upper Canada (Ontario) have filed written arguments to challenge the establishment of a law school by a Christian university. They will appear later this year to state their position verbally. Trinity Western University’s proposed school of law complies in all respects with academic requirements agreed upon by members of the Federation of Law Societies of Canada, including Ontario’s.

Still, both the government and law society argue (to use the Supreme Court’s language above) there is a need for them to put the private university “at a public disadvantage or disqualification” because the law society and government disagree with the university’s “religiously informed conscience” on the matter of a faith-based community covenant for staff and students. Both particularly object that the covenant prohibits sex between students or staff outside of marriage between one woman and one man.

It’s worth noting that in 2001 the Supreme Court supported Trinity Western’s community standards in a similar scenario when the challenge was brought by the British Columbia College of Teachers. The Court concluded the university met academic requirements and could offer an education degree, acknowledging not everyone would want to attend the private Christian university. Graduates who decided to teach in in B.C. would be subject to the B.C. College of Teachers’ rules of conduct. The Court noted, “if TWU’s Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church.  The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.”

In its 2004 decision in Reference re Same Sex Marriage , the Court expressed its position that there would be genuine differences of opinion about marriage. Protecting the right of religious individuals and communities to hold a definition of marriage at variance with that of the State, the Court observed, “The right to freedom of religion enshrined in s. 2 (a ) of the Charter encompasses the right to believe and entertain the religious beliefs of one’s choice, the right to declare one’s religious beliefs openly and the right to manifest religious belief by worship, teaching, dissemination and religious practice.”

In its submission to the Supreme Court in the law school case, the Law Society of Upper Canada bases its objection to Trinity Western operating a law school and the licensing of its graduates to practice law because the Law Society considers the Christian university to be “a private institution” with a “discriminatory admissions policy.” Effectively, the Law Society of Upper Canada contends the graduates of a law school that fulfils the academic requirements established to competently practice law in Canada may do so anywhere but Ontario, because the operating ethos of the school is Christian in belief and practice. The Government of Ontario has intervened in support of the Law Society’s position: no school, no graduates.

Consistent with this distortion of “liberal principles in an illiberal fashion” (to go back to Justice Gonthier’s words above about placing the religiously informed at disadvantage), in recent weeks the Law Society has initiated an extension of its submission on Trinity Western for application to currently licensed lawyers in Ontario. The Law Society has issued a directive requiring all its members “to create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public” before January 1, 2018.

The new decree is framed within efforts to address racism within the legal profession, but the language chosen leaves little doubt that the promotion of “equality, diversity and inclusion generally” goes beyond the question of race.

As a Christian, I believe and practice the Biblical recognition that all persons are created in the image of God (Genesis 1:26-27) with inherent dignity and value, and are worthy of respect.

As a licensee of the Law Society of Upper Canada, I am obligated to abide by the laws in the Province of Ontario generally, particularly the Ontario Human Rights Code . Under the Law Society’s Rules of Professional Conduct I have “a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity” as well as to “be courteous, civil, and act in good faith with all persons with whom the lawyer has dealings in the course of their practice.”

I expect to find myself among a group of lawyers from a variety of faith communities who consider our religious beliefs, commitment to the laws of nation and province, and obligations under existing rules of professional conduct – which is a mandatory community covenant for all who desire to practice law – as sufficient to address the Law Society’s concerns. There really is nothing more to add for purposes of an individual Statement of Principles.

However, submitting a statement that says my faith beliefs and existing obligations are more-than-enough may fall short of the Law Society’s expectation for members to “promote equality, diversity and inclusion generally.” Perhaps, only because we may have different understandings of what the words “promote,” “equality,” “diversity,” and “inclusion” mean. If adjudged that this more-than-enough is too little, I will likely find myself in the companionship of a substantial number of lawyers who, like potential graduates of Trinity Western University’s proposed school of law, have satisfied all academic requirements to engage in the practice of law, comply with Ontario’s laws and our obligations under the Rules of Professional Conduct, but will not bow religiously informed consciences to the god of 21 century political correctness.

Thirty-five years after Canada’s new constitutional Charter of Rights and Freedoms expressed its guarantee for the fundamental freedom of freedom of religion, it appears officials at the Law Society of Upper Canada and political leaders in the Government of Ontario might now well be the ones who don’t give a damn, this time concerning what the rule of law has to say about those who recognize the supremacy of God.

Religious Freedom and the Celestial Marriages of William Blackmore

Originally posted at Context with Lorna Dueck on July 25, 2017.

It took decades of deliberation to launch a prosecution. Monday’s conviction of Winston Blackmore and James Oler was the first in the 127 year existence of Canada’s Criminal Code prohibition against polygamy, following more than seven decades of plural marriage practice in Bountiful, British Columbia.

Don Hutchinson

Don at the Supreme Court of Canada

This constitutional battle will likely come to end with a decision of the Supreme Court of Canada. During the trial, Blackmore’s lawyer announced his client would appeal a guilty verdict if one was delivered by B.C. Justice Sheri Ann Donegan.

What is the likely final outcome? Does Canada face legal, constitutionally supported polygamy as some predicted during the national debate about redefinition of marriage?

Let’s review some history behind this week’s decision before I share an educated guess on the final outcome.

The situation in Bountiful was one of Canada’s drawn-out well-known secrets. In the 1990s Canadians were awakened to the long submerged truth about child sexual abuse in a variety of settings where adults had been regarded as positive role models to children in their care – schools, hockey arenas and religious institutions among them.  In that wake, the RCMP expressed concern to the Attorney General of B.C. about the wives and children of Bountiful.

A series of Attorneys General had studies prepared about the likelihood of courtroom success, apprehensive because of the Constitution Act, 1982’s guarantee of religious freedom in the Canadian Charter of Rights and Freedoms. The reports consistently advised prosecutors were unlikely to prevail as the marriages in Bountiful were not formalized in accordance with provincial requirements. Rather, they were religious marriages, called “celestial” marriages, documented in the records of the Fundamentalist Church of Jesus Christ of Latter Day Saints. FLDS is the breakaway Mormon sect in Bountiful that has tied its practice of plural marriage to its religious beliefs, as the main branch of Mormonism had done until the late 1800s.

In 2007, B.C. Attorney General Wally Oppal had had enough. Those who left Bountiful, by escape or eviction, confirmed RCMP concerns. Girls were groomed from childhood to become teen brides in the multiple celestial marriages of older men. Some were pre or early teen sexual conquests before marriage. Boys and young men deemed competition to dominant males were expelled, losing home, family and their place in the world.

Two special prosecutors retained by Oppal again recommended no action be taken. In 2009, a third special prosecutor agreed to move ahead. Technical errors in his appointment resulted in action being stymied.

In 2011, the B.C. Supreme Court ruled section 293 – the polygamy section – of the Criminal Code constitutional. Tracking the structure in Charter decisions of the Supreme Court of Canada, B.C. Chief Justice Bauman found the right to religious freedom – freedom to believe, worship, share religious beliefs openly, teach, evangelize and engage in practices interconnected with sincerely held religious beliefs – is violated by section 293 in regard to celestial marriages, but the violation is a justifiable and reasonable measure for the protection of women, children and the interests of society.

In 2014, one charge each was laid against Blackmore, who has twenty-four wives, and Oler, who has five. Both were convicted on Monday. Each charge carries a maximum sentence of five years imprisonment. Both intend to appeal.

This case will likely end with a decision of the Supreme Court of Canada, unless a plea deal is reached with Blackmore and Oler. Now headed to the B.C. Court of Appeal, if the decision of that court is well-reasoned it’s possible the SCoC will decline to hear the case, deciding to enforce the ruling of the appeal court. More likely, there will be a hearing before Canada’s highest court at some point in the coming years.

The other potential ending is in Parliament.

In 2004, the SCoC reminded Canadians that the Constitution Act, 1867 (formerly known as the British North America Act) remains relevant in the Charter era. Resolution to the constitutional reference case on same-sex marriage by the Canadian government was found in section 91 of the 1867 Act. The federal government has the constitutional jurisdiction to define “marriage” for Canadians. The Court noted that a redefinition in contradiction to religious beliefs could not be used to force a change in religious beliefs or practices.

The Civil Marriage Act was passed in 2005 by Prime Minister Paul Martin’s minority Liberal government, with support from the NDP and Bloc Quebecois. Canada’s definition of marriage was restated as “the lawful union of two persons to the exclusion of all others.” Martin’s hands had been tied on the issue, but not by the SCoC. His predecessor, Jean Chretien, had decided to not appeal court rulings in several provinces that authorized the solemnization of same-sex marriages – solemnization of marriage is provincial jurisdiction under section 92 of the Constitution Act, 1867. Martin was left with the quagmire of not recognizing same-sex marriages lawful in a checkerboard of provinces or extending authorization to all. His government did not remove section 293 from the Criminal Code.

Parliament has the authority to, again, redefine marriage. However, I expect judges and legislators will respect the 2005 definition of marriage, the 2011 legal reasoning of Chief Justice Bauman and this week’s decision of Justice Donegan.

Ottawa’s March for Life flag flap

Ottawa is facing a flag flap. The National March for Life flag was raised at city hall in the morning on May 11, 2017 and taken down in the afternoon. As Canada’s capital city you can easily imagine that Ottawa hosts a number of local, provincial, national and international events. Many are accompanied by the symbolic raising of a flag at city hall. That flag pole has become something of a symbol for free speech.

DonParlForum

For the twentieth year in a row thousands of Canadians filled the lawn and sidewalks of Parliament Hill, the seat of our democracy. The past few years, police have erected barricades on Parliament Hill and along the march route. Not to control pro-life participants but to protect them from opponents who in recent years have engaged in hateful, and harmful, displays such as throwing condoms and other items at marchers, spitting on marchers and other acts designed to provoke a negative response.

Canada’s absent legal protection for children prior to birth is an issue of much conversation but little action from the majority of Canadian politicians. The limited action of today’s political environment includes Prime Minister Justin Trudeau’s edict that those who support protection for children before birth are unwelcome in the political party he leads, and the written demand from several Ottawa city councillors that the flag be taken down. In the process, the Prime Minister and councillors mistakenly assert a “right” to abortion as their rationale.

The matter of unregulated availability of publicly funded abortion in Canada is the result of a Supreme Court of Canada decision made in 1988, and the subsequent failure of Parliament to follow the court’s direction to enact suitably constitutional legislation for the protection of children prior to birth.

At issue in the Morgentaler case was a section of the Criminal Code that became law in 1969. Section 251 maintained abortion as illegal in Canada, providing exception only for instances of medically therapeutic reasons. The exception to the continuing general prohibition required the abortions to be performed in a hospital following review and approval of the health reasons by a committee of three doctors.

The Prime Minister of the day was the current Prime Minister’s father. In regard to the new law Pierre Trudeau stated,

You know, at some point you are killing life in the foetus in self-defence – of what? Of the mother’s health or her happiness or of her social rights or her privilege as a human being? I think she should have to answer for it and explain. Now, whether it should be to three doctors or one doctor or to a priest or a bishop or to her mother-in-law is a question you might want to argue …. You do have a right over your own body – it is your body. But the foetus is not your body; it’s someone else’s body. And if you kill it, you’ll have to explain. (Montreal Star, May 25, 1972)

In 1988, the Supreme Court of Canada found that the requirements to first meet with a therapeutic abortion committee and then have the medical procedure performed in a hospital posed a risk to life for women who might qualify for a legal abortion but would experience delays because of their distance from a hospital with a therapeutic abortion committee.

In a blog from May 27, 2014, I noted:

In speaking to law school students on this case, I conduct a brief show of hands quiz on whether they have been taught in first year constitutional law that there is a right to abortion and whether they have actually read the Morgentaler 1988 decision for themselves. The majority typically say yes to the former and no to the latter.

I encourage those law students, you, and Mr. Trudeau, to read the decision. It’s available online. Don’t worry about whether you will understand the legalese. Instead, make three columns on a piece of paper. In the first column write the names of the seven judges who decided the case. In the second column put a check mark beside the name of each judge who decided there is a constitutional right to abortion. In the third column put a check mark beside the name of each judge who decided it is the jurisdiction of Parliament to make a law prohibiting or restricting abortion. You’ll end up with seven check marks in the third column and none in the second (unless you place one beside Justice Wilson based on a disputed statement; and still, you’ll put a check beside her name in column 3). The Supreme Court Justices even offer their opinions on what a constitutionally acceptable abortion law would look like.

The court was unanimous that Parliament has a constitutional interest in the child before birth. In fact, shortly after the decision, a legislative attempt to replace the section struck down in Morgentaler passed the House of Commons, passed two votes in the Senate and then died because of a tie on the final vote. Several Senators were absent for the third vote, and the Speaker of the Senate determined that on a tie vote it was his responsibility to declare that the proposed legislation had not passed and therefore he voted against it.

Since that time Canada has remained without legal protection for the “someone else’s body” identified in the statement made by Prime Minister Pierre Trudeau. Distinctly, the only democracy in the world that fails to offer protection even to the medically viable pre-born child.

The March for Life, like similar protests on Parliament Hill, demonstrates that there are Canadians who desire Parliament take political action on an unsettled question, one that is literally a matter of life and death.

The only right at issue in raising and lowering the flag at city hall is the constitutional right to freedom of expression, free speech on whether Parliament will exercise its recognized constitutional authority in the life of yet-to-be-born citizens by providing protection of the law or continue to withhold that protection.

Raise the flag. Let’s have the conversation.

Canada’s Cannabis Act and the corruption of our children

Protecting our children from harm is a reasonable expectation for parents and grandparents to have of our government. Canada’s Cannabis Act doesn’t do that.

DonParlForum

It was a privilege to be part of the team that fought to raise the age of consent for sexual activity with an adult from fourteen to sixteen years of age, becoming Canadian law in 2008. At that time, there was a challenge to lower the age of consent for anal intercourse from eighteen to sixteen. Our answer was raise them both to eighteen then, because the issue was and remains protecting children. It was disturbing to hear last November that the federal government is now planning to lower that age from eighteen to sixteen. The risks to our children are innumerable. Several of the medical dangers are unsuitable for print.

A celebratory fist pump met the occasion of the last Parliament setting an increased mandatory minimum sentence of five years for trafficking children in Canada, and similarly for extending our Criminal Code to Canadians caught engaging in sexual activities with minors in other countries.

So when the government called a press conference to announce measures it says are designed to protect our children, scheduling it for the Thursday before the Easter weekend and a two week break in Parliament, my interest was peaked. When the Health Minister, Minister of Justice, Minister of Public Safety and the former police chief from Canada’s largest city (now Parliamentary Secretary to the Minister of Justice) took the platform to announce legislation that will make Canada the first G7 nation in which cannabis (marijuana) sale and use will be legalized I took notice. I also wondered, why announce the fulfillment of this campaign promise on the day the lull begins?

So I read the legislation.

“Youth are at the centre of the government’s actions to regulate and restrict access to cannabis,” Health Minister Philpott said.

That makes sense, more so when you read that the minimum age for legal purchase will be eighteen, the legal age of adulthood. Although, it is the near unanimous opinion of Canadian medical organizations (The Canadian Medical Association, the Canadian Psychiatric Association, the Canadian Paediatric Society and others) that anything under twenty-five is too young and will lead to irreparable physical and psychological damage that will quickly cost our health care system tens, then hundreds of millions of dollars a year nationwide. The responsibility for footing health care costs rests with the provinces. So too will the requirement to regulate sales of cannabis and the option to set a higher age for legal purchase.

Private growth of up to four one-metre high plants per household will also be legal. (Anyone else remember when the joke about politicians was the promise of a car in every garage?)

However, very disturbing in the legislation that forbids the sale of cannabis to those under eighteen, forbids packaging that would appeal to them and the growth of cannabis plants by minors are two provisions found in Part I. Section 8(1)(c) authorizes the possession of up to five grams of cannabis by “a young person,” as defined in section 2 and the Youth Criminal Justice Act as being between the ages of twelve and eighteen years, without penalty. A quick online search suggests five grams is eight to twelve cone shaped joints the length of an unfiltered cigarette, with the open end about the same thickness as a cigarette. Section 9(1)(b) authorizes a young person to distribute up to five grams of cannabis without penalty of law. Combined, this means Canada’s government intends cannabis to be legal in public and in schools for children, who may share their stash with other children.

The government proclaims loudly that the law is designed to protect our children. Yet it explicitly authorizes twelve year olds to carry and distribute cannabis to others without penalty. Not permitted to purchase from provincially authorized distributors, legally obtain their weed from adults or grow their own, where will children acquire their penalty-free supplies of cannabis? Putting an end to the illegal growth, sale and distribution of cannabis seems somewhat questionable in light of Bill C-45’s provisions for open possession and distribution by minors. So too, does the three-Ministers-and-a-former-police-chief proclamation about the safeguarding of our children.

The suggestion that this legislation is designed to protect our children is, quite simply, blowing smoke. The choice of public authority figures selected to make the announcement – calculatedly keeping Prime Minister Trudeau, who has admitted his illegal use of marijuana while a Member of Parliament, away from the table and the media – is in the same category. The date for the announcement was intended to facilitate public attention moving on to something else even before the haze clears.

In the best interests of our children, we must not be distracted by the smoke and mirrors employed by the government on this bill, which introduces new measures for the corruption of our children, not their protection.