Space within the law in which religious voices can be heard

Beverley McLachlin, Chief Justice of the Supreme Court of Canada, made an unusual and significant decision on Monday. The Chief Justice issued a variance to the order of Justice Richard Wagner, significantly expanding the number of organizations that will present to the Court on the Trinity Western University cases scheduled to be heard together November 30, and now December 1 as well.

Don Hutchinson

At the Supreme Court of Canada

You may recall that TWU satisfied the educational requirements of the Federation of Law Societies of Canada and the British Columbia Ministry of Advanced Education as precursor to recruiting staff and opening a law school. Three Canadian law societies (the provincial self-regulatory bodies for the legal profession) decided to step back from their agreement with the Federation in regard to the approval because TWU would be the first private religious school in the country authorized to educate lawyers. They objected to the Christian religious requirements of the TWU community, particularly abstention from sexual activity, except with their spouse for those staff and students who are married, marriage being defined in the religious tradition of the school as between one woman and one man.

The Supreme Court of Canada is scheduled to hear the remaining refusals of the TWU law school from British Columbia and Ontario.

The Law Society of British Columbia is appealing a unanimous decision by five judges of the British Columbia Court of Appeal that approved of TWU opening a law school, concluding:

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.

The other case is an appeal by TWU of the unanimous decision by three judges of the Ontario Court of Appeal in favour of the Law Society of Upper Canada’s decision to deny admission to legal practice by graduates of the law school, noting:

… the LSUC did not violate its duty of state neutrality by concluding that the public interest in ensuring equal access to the profession justified a degree of interference with the appellants’ religious freedoms.

Justice Wagner was tasked with deciding who would be permitted to make arguments before the Court in addition to TWU and the two law societies. These extra presenters are called “interveners.” To receive authorization to present before the Court, they must comply with an application process. Justice Wagner decided that a limited number of applicants would be permitted as interveners.

The Chief Justice altered that preliminary decision, as is the prerogative of her position.

Her decision is in keeping with a previously stated position outlined in my book, Under Siege: Religious Freedom and the Church in Canada at 150 (1867–2017).

Beverly McLachlin became Chief Justice of the Supreme Court of Canada in January 2000. On October 9, 2002, speaking at the Pluralism, Religion, and Public Policy conference held at McGill University, she stated her opinion that it is the responsibility of the courts to find somewhere “in the comprehensive claims of the rule of law, a space in which individual and community adherence to religious authority can flourish.” The Chief Justice recognized that in the claims of law and religion, “two comprehensive worldviews collide. It is at this point that the treatment of religion becomes truly exigent… both lay some claim to the whole of human experience.” It was the Chief Justice’s conclusion that the courts must meet this challenge in society and that they have been charged with the responsibility for creating this space, “a space within the rule of law in which religious beliefs can manifest.”

On Monday, the Chief Justice decided to make some of that space in her courtroom.

In addition to those who support TWU’s law school proposal, she also made space for those who do not, expanding the field of interveners from the nine selected by Justice Wagner to all thirty-two applicants. In doing so, she affirms a point of law on which she stated agreement in 2004, written by Justice Charles Gonthier:

…nothing in the Charter, political or democratic theory, or a proper understanding of pluralism demands that atheistically based moral positions trump religiously based moral positions on matters of public policy.

The Court’s particular role as an instrument of the state is to do its best to be neutral in hearing and deciding these two related cases.

Comments of Justice Marie Deschamps, made in 2012 and with which the Chief Justice agreed, in regard to the state’s duty of neutrality are also noted in Under Siege:

The Court concluded “that, from a philosophical standpoint, absolute neutrality does not exist”.

However, following a realistic and non-absolutist approach, state neutrality is assured when the state neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected.

The place of the religious Canadian in Canadian society is equal with that of the non-religious Canadian.

It will be a far more interesting discussion on the points of law at issue in this case with the additional interveners granted the opportunity to present before the Court, including the Canadian Conference of Catholic Bishops, The Evangelical Fellowship of Canada, the Canadian Council of Christian Charities and the World Sikh Organization among others.

Through this decision, informed by the wisdom of experience – no doubt also a difficult one, particularly since Justice Wagner, from Quebec, is being touted a likely successor to the Chief Justice’s chair on her retirement in December – Beverley McLachlin is staying faithful to her word by making space in which important religious voices can be heard.

You can follow the status of the cases here.