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.”

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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.

Pastor Lim’s Ray of Light

Originally posted at Convivium.ca on August 14, 2017.

For several days now, against the backdrop of escalating rhetoric between U.S. President Donald Trump and North Korea’s Premier Kim Jong-un, mainstream and social media have been teeming with stories about a particular ray of light shining in the publicly intensifying political darkness.

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Canadian pastor Hyeon Soo Lim was set free from a North Korean prison on Thursday. He had served less than two years of a life sentence for subversion of the government through religion, a crime to which Lim had proffered a state-televised public confession. Detained in February 2015, life sentence decreed that December, Lim was suddenly a free man.

Concern developed when the official reason for release was stated as “sick bail” on humanitarian grounds. This was amplified when Lim’s family issued an early statement asking for privacy until his medical condition could be assessed. The world was well aware that just weeks ago, American Otto Warmbier had returned home from a North Korean prison in a walking coma, death arriving a few days later.

Apprehension abated somewhat when video emerged of the sixty-two year old Lim walking about in conversation on an airport runway in Japan, after disembarking an RCAF passenger jet. He looked leaner and somewhat aged from his last recorded appearance, but in apparent good health.

The consistent thread running through the reporting of this story, whether relaying the narrative of Lim’s personal health or the tale of secretive diplomacy, is that Hyeon Soo Lim is the pastor of one of Canada’s largest churches.

Initial scant reports on Lim’s release were followed by longer stories, several claiming to describe the inner political workings of international prisoner releases by the Democratic People’s Republic of Korea, the nation established on the northern part of the Korean peninsula as one of several political divisions by Allied forces following WWII. As the ally then with authority over the DPRK (North Korea), the Soviet Union’s communist government installed as leader Kim Il-sung, father of his successor Kim Jong-il and grandfather of current Supreme Leader , Kim Jong-un. Without a diplomatic mission in North Korea, the Canadian government worked with a contemporary ally, Sweden. Reportedly, through the negotiation by the Swedish embassy in Pyongyang, secret meetings with North Korean representatives at the United Nations headquarters in New York and a Sunday afternoon foreign minister to foreign minister conversation in Manila, a deal was struck.

Tuesday, a Canadian diplomatic team hurried to Pyongyang, with an envoy said to be carrying a personal letter from Prime Minister Trudeau to Premier Kim. Thursday, Lim was on the plane with them headed home. Saturday, he again descended the small jet’s steps in his own strength at CFB Trenton before hugging his wife, then lifting his nearly one-year-old granddaughter in his arms. His desired next stop? Tim Horton’s on the drive home!

The consistent thread running through the reporting of this story, whether relaying the narrative of Lim’s personal health or the tale of secretive diplomacy, is that Hyeon Soo Lim is the pastor of one of Canada’s largest churches. Reverend Lim had travelled to North Korea more than one hundred times over the last two decades. Born in Seoul a decade after Korea was divided into South and North, Lim knew the risks. So, why endanger his life on more than one hundred occasions? Particularly after American missionary Kenneth Bae (also born in South Korea) was detained and sentenced in North Korea on similar grounds in April 2013?

Lim was on a personal humanitarian mission, motivated by his Christian faith and his Korean origins.

Lim appreciates the people, whether living in the North or South, are his Korean cousins, and that they are imago Dei , created in the image of God. He understands Christians are obliged by Scripture to engage in works demonstrative of our faith (James 2:14-22) and to be ambassadors of reconciliation (2 Corinthians 5:18-20). Called to lead in the Korean diaspora, Lim found himself also drawn to serve as an ambassador of good works. Beginning with relief efforts following the North Korean famine in 1996, Lim initiated activity that has met real needs of real people in the northern part of his divided homeland. He engaged in food sustainability initiatives, as well as establishing a nursery, orphanage and home for the elderly among other humanitarian endeavours for which he raised tens of millions of dollars.

Hyeon Soo Lim understands what Jesus Christ and His earliest followers relayed in words, both spoken and written, and displayed in their daily lives. A faith that is focused on loving God compels loving our neighbours, both near and far, as well. Christ, the Light of the World (John 8:12) challenges us to also let our light shine (Matthew 5:16), assessing and accepting attendant risk.

Following Lim’s detention and sentencing, Christians in Canada and around the world, mobilized in prayer, and in practical pressure on the Canadian government, as meaningful service to Pastor Lim and his family, in the effort to secure his release.

Whether Premier Kim responded to Divine or diplomatic intervention, or some combination, we may never know. Neither will we know whether Kim’s act was a humanitarian goodwill gesture or motivated by sufficient awareness of Christianity that he preferred a South Korean born Canadian pastor praying from Toronto to the potential of a martyr inspiring North Korean Christians to greater works, greater boldness and greater numerical growth. What we do know is, in the midst of a war of words between Premier Kim and President Trump that has cast a threatening political shadow over the globe, there shines a ray of light in the release of a compassionate man who for two decades brought his own ray of Light into the darkness of people in need.

Hyeon Soo Lim understands what Jesus Christ and His earliest followers relayed in words, both spoken and written, and displayed in their daily lives.

Sunday morning, Pastor Lim arrived at Light Presbyterian Church to a crush of media, along with parishioners and visitors. Later, he stood in the pulpit to share about his ordeal and how it propelled him to a more intimate relationship with Jesus. He closed the meeting with prayer in his native Korean. I’m told he prayed for his adopted country of Canada, for the people of North Korea, and for peace.

Welcome home, Reverend Lim. We join you in that prayer.

The 20th Century Belongs to Canada

Originally posted at The Gospel Coalition Canada on July 24, 2017. (1st of 3 parts on the Canadian Church and the public sphere)

Sir Wilfred Laurier, Canada’s seventh Prime Minister, famously said, “The 19th century was the century of the United States. I think we can claim that it is Canada that shall fill the 20th century.” Those taking hold of Laurier’s claim have frequently reduced his statement to simply, “The 20th century belongs to Canada.”

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Shortly after winning the 1891 election, Canada’s founding Prime Minister Sir John A. Macdonald suffered a stroke and days later died. Five years later, his Conservative Party was still in disarray. On their fourth leader (and fourth Prime Minister) since Macdonald, the Conservatives fell to Laurier’s Liberals in 1896. Laurier would win four majorities in succession and lead the nation for fifteen years.

He had good reason for hopeful words about the future. Little more than three decades old, the original four provinces that linked together to form Canada at Confederation on July 1, 1867—Upper Canada (Ontario), Lower Canada (Quebec), New Brunswick and Nova Scotia—had been joined by Manitoba (1870), British Columbia (1871) and Prince Edward Island (1873). In addition to Manitoba, the process was in place to establish the provinces of Saskatchewan and Alberta out of the then vast Northwest Territories, acquired by Canada in 1870 from the Hudson’s Bay Company. A Mari usque ad mare, from sea to sea, the last spike in Canada’s transcontinental railway had been hammered home November 7, 1885. And Laurier had approved construction of a second and a third!

The Canadian Church in The 19th Century

The political and industrial optimism of the nation extended to the Canadian Church. In 1867, Catholic and Protestant churches had their right to operate denominational schools secured in the British North America Act (now known as the Constitution Act, 1867). This security for future generations was repeated as each new province joined Confederation. The transcontinental railway system, with multiple provincial spur lines, introduced opportunities for evangelism and expansion from both east and west across the prairies.

Denominations sought ways to transition from colonial and regional activity to establish their presence throughout the budding nation. In his book, The Church in the Canadian Era, John Webster Grant described the challenge faced by the Church to keep up with the rapid progress. A number of theologically related denominations merged to facilitate administration of a national presence. Canada’s churches were enthusiastically engaging their membership in the formation and growth of the nation.

E.C. Woodley, in The Bible in Canada: The Story of the British and Foreign Bible Society in Canada, tells how the para-congregational British and Foreign Bible Society (BFBS), founded in 1804 by a small group of Christian leaders including British Member of Parliament William Wilberforce, expanded with Church and nation. At an early meeting of the BFBS, the decision was made to publish the Gospel of St. John in Mohawk. Active engagement in what would become Canada quickly followed. With Confederation, railways and substantial Indigenous and immigrant populations, the work of Bible distribution and translation multiplied. In 1904, fourteen independent auxiliaries of the BFBS joined together to form the Canadian Bible Society (CBS). CBS would find a place in the hearts of many through its supply of New Testaments and Bibles in a variety of languages to Canadian and other allied troops and prisoners of war in World Wars I (270,000) and II (798,000). The available selection of translations had been developed to meet domestic needs resulting from burgeoning, mostly European, immigration.

The Canadian Church in The Early 20 Century

The Great War saw Canadians flock to churches to pray for victory. Whether because of answered prayer or seeking continuing comfort for lost loved ones, they stayed at war’s end. Those who returned from the front sought out similar support at home as had been provided overseas by chaplains, the Red Cross, The Salvation Army, and the CBS Bibles.

The national growth spurred a uniquely Canadian merger in 1925. The Methodist Church, Congregational Church, and two-thirds of Canada’s Presbyterian congregations joined together to form the United Church of Canada. At union, the United Church became the largest Protestant denomination in the country, quickly displacing the Anglican Church as the primary Protestant voice to counter that of the Roman Catholic Church in both politics and culture. Other potential church mergers, including between the Anglican Church and the new United Church, would be discussed actively among Protestant leaders for another half century.

Even the Great Depression of the 1930s could not slow the overall progress of Canada’s Church. Congregations and para-congregational missions became the backbone of both voluntary and government networks of meeting human need.

My stepfather soldiered at the front in World War II. He used to say that there were no atheists in a foxhole. However, that sentiment did not necessarily carry back to Canada with those who came home. World War II resulted in what had been known as The Great War being retitled as World War I. Questions about global political and military stability were rampant, as were mounting fears of a World War III. Trends in church attendance indicate soldiers returned home, but not necessarily to Sunday worship. Evangelism crusade ministries, such as Youth For Christ started by Charles Templeton and friends, were having a positive impact but traditional Protestant denominations became concerned about Sunday attendance.

Automobiles, air travel, radio and television were making Canada a more connected—might it be said, smaller—country. Occasions to be away from Sunday services, at the time still morning and evening for most congregations, increased as opportunities to visit family or friends for an afternoon or to watch Walt Disney’s Wonderful World of Colour (or other early evening television programs) presented unanticipated competition.

The Canadian Church in The Mid 20th Century

However, it was the early 1960s which witnessed a visible decoupling of culture from church. In Quebec, after a decade and a half of rule by Maurice Duplessis’ Union Nationale, a party closely aligned with the Roman Catholic Church, the rallying cry Maîtres chez nous (“Masters in our own house”) secured victory for the Liberal Party of Jean Lesage. La Revolution tranquille (“the Quiet Revolution”) brought both cultural and political change. At the same time, a general cultural revolution (it was more than a sexual revolution) was sweeping across English Canada and a generation was emboldened to step away from the strictures of religion.

Concerned about the nascent trend, in 1963 the Anglican Church of Canada retained a former Anglican, author Pierre Berton, to conduct an assessment and write a general critique. The Comfortable Pew: A Critical Look at Christianity And the Religious Establishment in the New Age was published in 1965. The little book was an instant bestseller. After publication, Berton was invited to share his thoughts with the United Church of Canada and the Presbyterian Church in Canada.

Berton’s diagnosis portrayed the church as wealthy, insular, and filled with people primarily there for social and business reasons; he also portrayed the church as endorsing a private and unchallenged faith and failing to offer guidance on issues of morality or public engagement—from business ethics to the major decisions of political leadership. His solution? Realign the church to engage the culture as part of the culture. This would necessarily involve reevaluating or setting aside historic principles of Scripture, which Berton considered to be no longer relevant to Canadian society in the century’s closing decades.

The greater portion of the Protestant Church in Canada embraced Berton’s recommendations and began to drift with the tide of culture.

At the same time politically in the 1960s, Prime Minister Lester Pearson’s Liberal government came to power, implementing new immigration policies that redirected Canada’s immigration tendencies. This redirection impacted Canada’s historic churches in an adverse way.

Pearson also envisioned the future of his Liberal Party being secured through establishing a power base in Quebec’s constitutionally-guaranteed minimum of twenty-five percent of seats in the House of Commons. He actively recruited high profile candidates from the province. One of those candidates, Pierre Elliot Trudeau, would become Pearson’s Justice Minister, then succeed him in 1968 as Prime Minister. Trudeau introduced legislation that made it easier to obtain a divorce, as well as decriminalizing abortion and homosexuality.

The culture that had grown with the Church was, like the Israelites of old, finding fresh distractions and new temptations. The traditional churches were in the beginning stage of what would become a rapid decline by century’s end.

Re-emerging would be denominations and congregations that placed primacy on orthodoxy (sound doctrine) and orthopraxy (sound practice), holding fast to the Word of God. Evangelicals, whether denominationally or congregations within traditional Protestant denominations, were holding their statistical percentage of an increasing Canadian population. That meant growth. Also growing were Eastern Orthodox communities, benefiting from immigration changes, and networks of immigrant-led ethnic Protestant and Roman Catholic congregations. For the most part, this new wave of immigrants observed a more conservative expression of faith than their European-origin Canadian forebears.

Canadian culture and demographics looked different entering the 21st century than they did when Laurier made his proclamation at the beginning of the 20th. So did the Church.

A jealous mistress, a jealous God and strange bedfellows

“The law is a jealous mistress.” If a student hasn’t heard that quote before arriving in the hallowed hallways of her law school, she is likely to hear it on her very first day. U.S. Supreme Court Justice Joseph Story coined the term in the talk he gave when he became a professor at Harvard University in 1829. Law students have been hearing it ever since. Story was noting the law, as study and profession, is demanding of time, thoughts and energy. Some have said, the law is all consuming.

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If married, be assured your spouse will not be enamoured of the idea that you have a mistress, whether another woman, the law or any other obsession, particularly a mistress jealous of other interests or pursuits in your life.

Stipulating ten life-enriching commandments to the nation of Israel, God doubled down on recognition he is the only true God before bridging to the other eight directives. In doing so, he referred to himself as “a jealous God” (Exodus 20:4). Jesus was unwavering on this point, stating the first and greatest commandment is to love the Lord our God with the four alls of our existence – all your heart, all your soul, all your mind and all your strength (Luke 10:27). That’s the covenant.

It was in 1870 that Charles Dudley Warner turned the phrase, “politics makes strange bedfellows.” Warner was comparing an American political situation with his summer garden. The intermingling of untended berry plants led him to riff off of William Shakespeare, who wrote in The Tempest (Act 2, Scene 2) that “Misery acquaints a man with strange bedfellows.” Whether facing life’s storms or seeking to escape them, people not expected to cooperate with one another may end up doing so for a variety of unintended reasons, particularly when it comes to politics.

The danger with a strange bedfellow is one’s unintended bedmate may well become one’s jealous mistress. An interest in politics can easily become overly partisan, inflaming a desire to make law with one another. In the grips of such passion, we are tempted to set aside an earlier covenant made with someone else. Politics, as hobby or profession, may entice any one of us away from Jesus, who loves us, gave himself for us, and requires from us all, all, all, all.

Manifest political partisanship seductively woos us to regard one political leader as saviour, and another as devil. Both are simply human. Neither is to be to us an idol.

It seems our forgetfulness of actual Saviour and Devil may rival the impetuous collective amnesia of the Israelites who demanded a golden calf be fashioned as their god, despite having been clearly told not to do so. And then doing it within clear sight of a cloud-cloaked mountain where Moses was meeting with the Lord their God, who had only recently delivered them by the hundreds of thousands from centuries of captivity in a foreign land.

I cannot imagine that all of the two million-plus people at the base of Mount Sinai cried out for the calf. More likely, a vocal few rallied part of the crowd – some with convictions on the issue, others less so but inclined to go with the flow of friends or family – and the ensuing mob action pressured Aaron. There were, no doubt, a large number who looked to Aaron, a recognized leader in their community, for guidance. Aaron instead acted on the opinion of the enraged crowd, however misshapen or misleading. Aaron, a spiritual leader of the people, allowed intimidation to steer him to do something other than trust God’s word.

Today’s rallying cries may come through social media memes, tweets, blogs and videos or public statements by people we are convinced can be trusted. Perhaps, they are on the saviour’s team. Maybe they’re on the Saviour’s team, too. We need to dispassionately assess whether their agitation is intended to arouse in us desires that would lure us to join in the pursuit of a contemporary golden calf. What’s their motivation? Who do they want us to align ourselves with? Where will following lead us? We are to embrace neither idols, other gods nor a different saviour. We have one God. And he has commissioned us to be his ambassadors, ambassadors of reconciliation, sharing the good news of Jesus Christ (2 Corinthians 5:17-21).

The authors of the New Testament inspire our participation in society as good citizens. In a democracy, rendering unto Caesar (Matthew 22:21a) means our participation can extend to any and all stages of political involvement, but as Christians our participation must be accompanied by rendering unto God the things that are God’s (Matthew 22:21b).

Before we take action that will lead others who trust our voice, whether through speech, tweet or post, it’s our responsibility to ascertain if the expression is suitable to be shared by an ambassador of reconciliation? Or does the message originate from the tantalizing quest of a jealous mistress or strange bedfellow to stimulate within us a craving for their recommended golden calf?

The Lord our God is a jealous God. He encourages our contribution to the good of the world around us, and endorses no competitors for his tender affections.

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.

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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.