To become a law student at the proposed Trinity Western Law School in British Columbia, you need more than passion for the practice of law, good LSAT scores, high grade point average and an impressive resume. You must also sign the school’s covenant, prohibiting same-sex relations or other sexual relations outside of traditional marriage. As the “Christian” school, Trinity Western feels justified in its delusion, because it is following the Biblical condemnation of homosexuality – and we all know that as long as your holy scripture of choice justifies an action, no matter how discriminatory or abhorrent in a modern society, that is OK. Correct? Welcome to the madrasa of the West Coast, about to receive the official state seal of approval.
The pursuit of equal rights in Canada is not a singular event. It is rather a continuum, a proud compendium of legal and political victories, driven by the brave and fair-minded Canadians of all backgrounds, religions and sexual orientations. The recommendation of the Federation of Law Societies of Canada in favour of the preliminary approval of Trinity Western’s law school is a break in this otherwise unbroken chain of commitment to individual dignity and ethics of equality. B.C. Ministry of Education’s decision to approve such accreditation would be as ill advised, as it is illegal. While the world has moved on and the laws have evolved, the British Columbia government and the Federation appear to be stuck in 2001 time warp, which saw the Supreme Court of Canada sacrifice the dignity of gays and lesbians to the golden calf of freedom of religion (in B.C. College of Teachers case). Luckily, the evolution of equality jurisprudence and legislation, along with the accelerated shift in public sentiment no longer tolerate such outcome.
Gays’ and lesbians’ equality rights are no longer a helpless infant of the Charter family that they were almost two decades ago. We have grown as a nation, and in the process we have developed a strong distaste for bullies, bigots and their enablers. Many of us have realized that freedom from religion is as valuable and as valid as the freedom of religion. Our laws will no longer allow the dogmas of yore to hold us hostage forevermore.
That we are having this discussion in 2014 is shocking enough. It reveals the legal and social tensions bubbling and drawing up fault lines under the seeming calm of Canada’s venerable Constitution. It also shows that no matter how advanced our laws and our jurisprudence, complacency is all that it takes for discrimination and intolerance to take root. The outcome of this unfortunate experiment seems predetermined by the Human Rights Codes in Ontario, Alberta, and other provinces, which have enacted the statutes to preclude this abuse of human rights. The current legislative and jurisprudential frameworks, along with each law society’s mandate to work in the public interest not unequivocally call for the rejection of this overtly discriminatory institution.
The history of democracy is a chronicle of a frustrating tug of war between bigotry and demagoguery, packaged appealingly as religious liberty – on one side – and the forces of acceptance, inclusion, rational thought and the respect for human dignity on the other. I am hopeful that the law societies across Canada will rise to their core mission to uphold the principle of equality, and that they will not cower in fear of being labeled anti-religion. Freedom of religion in Canada is not under attack. Freedom to discriminate with the State blessing is. Had this unabashed attempt at discrimination and exclusion been cloaked in anything other than the claims of “religious freedom,” the reaction from the Federation, the B.C. Ministry of Education and the public would have been swift and decisive.
The right to form the relationships of one’s choice and to be accorded dignity and respect equal to that accorded to other more traditional family structures is at the core of our Charter. The B.C. government’s acquiescence and the Federation of Law Society’s gross neglect ignore this elementary constitutional guarantee. The law societies are the creatures of statute. Their actions must be in compliance with both the provincial human rights Codes and with the Charter. The recognition of the Trinity Western law school would run afoul of this obligation and would constitute an invalid exercise of delegated power. The right of an individual to enter into a consensual relationship with another person, just like the right to marry, is a right possessed both by each individual member of the couple and by the couple as a whole. The respect for sexual practices and romantic preferences of individuals are deeply private and sacrosanct pillars of our legal framework, and are not subservient to religious dogma. The law societies should be mindful that not only does the approval of Trinity Western covenant engage s.15 equality protections but it arguably touches upon s.7 of the Charter as well, since it encroaches upon the “sphere of autonomy” with which no entity, public or private may interfere.
If law societies fail to act, our courts will be called upon, once again, to discharge their gravest and most important responsibility under our constitution – to ensure that the rights and protection may not be withheld from any Canadian on the ground of sexual orientation or private sexual practices. But if we, as lawyers and members of the law societies, pass the buck to the courts, we will have failed in upholding our basic oath, which binds us to “champion the rule of law and safeguard the rights and freedoms of all persons.”
Ivan J. Steele, Barrister and Solicitor