More than 14 months after the Supreme Court first held that the Criminal Code provisions forbidding physician-assisted death were unconstitutional in Carter v. Canada (Attorney General), 2015 SCC 5, and almost three months to the day from the date that the Supreme Court gave a four month extension to its suspension of the declaration of unconstitutionality (see Carter v. Canada (Attorney General), 2016 SCC 4), the Liberal government has introduced its legislative response with a bill, Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying).
For those of you who follow this issue, the current score is 2 to 1 for Trinity Western University as against the Law Societies. TWU has won two of the three trial court decisions – namely, those in British Columbia and Nova Scotia. It lost its inaugural round in Ontario. All three decisions are being appealed. As we all know, this one is going all the way to the Big House.
Where do things stand right now in the three provinces?
Today Chief Justice Hinkson quashed the decision of the Benchers of the Law Society of British Columbia to submit the question as to whether to accredit Trinity Western University’s proposed law school or not to a referendum of the members after previously having decided to accredit the proposed law school. He found that the Benchers’ later decision was improper, was an improper fettering of the Benchers’ discretion and did not involve a proper balancing of the Charter interests as had been done by the Benchers in their earlier decision. He restored their earlier decision to accredit the proposed law school. His ruling can be found at Trinity Western University v. Law Society of British Columbia, 2015 BCSC 2326. I will not go through the legal analysis in this post, at least not today. I will say, however, that this is obviously yet just one more step in the multi-province, multi-action process that will eventually culminate in the Supreme Court of Canada having to review its earlier decision in Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31.
This last week, lawyer and Ph.D. candidate and Vanier and Trudeau scholar, Kerri Froc, was interviewed by Jim Brown on the CBC program, The 180, about gender equality and the rationale behind s. 28 of the Charter. Section 28 states:
Rights guaranteed equally to both sexes
28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
Ms. Froc’s interview can be found at The 180 website and is well worth listening to.
On September 15, 2015, the Federal Court of Appeal issued a short ruling from the bench in the appeal of Zunera Ishaq’s case respecting the Department of Citizenship and Immigration’s policy that requires women who wear a niqab to unveil in order to take the oath of citizenship. In Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 194, Madam Justice Mary Gleason rendered a short six paragraph oral set of reasons, issued in this manner so that Ms. Ishaq might still be able to take the oath of citizenship and vote in the upcoming election.
The Supreme Court of Canada recently pronounced on the appropriateness of a municipal council insisting on a prayer before holding its meetings. In Mouvement Laique Quebecois v. Saguenuay (City), 2015 SCC 16, Justice Gascon for the majority (Abella J dissenting on the question of the variable test for judicial review of administrative tribunals) held that City of Saguenay’s bylaw which provided for the use of such a prayer, even if it did not derive from any particular denomination, nonetheless offended the freedom of religion of atheists and agnostics (the freedom not to believe) and was therefore inoperative.
The Supreme Court of Canada has made it clear – if you are going to raise a s. 15 Charter discrimination claim, make sure that you have the evidence to substantiate your claim. Making claims on the basis of intuition, presumed facts or innuendo will not suffice. In Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, released on Thursday, May 28, 2015, Justice Abella, speaking for the Court, reinstated the judgment of the trial judge, Mr. Justice de Montigny of the Federal Court, Trial Division. She rejected the claim of former Chief Taypotat of the Kahkewistahaw First Nation that the First Nation’s Election Code’s education requirement that candidates for office hold a Grade 12 diploma or equivalent discriminated against him on the basis of his age and residence on the reserve. Her judgment focussed principally on the utter lack of evidence of the alleged discrimination as well as the fact that the grounds had not been expressly pled, at least not in the manner developed by the Federal Court of Appeal on its own initiative.
In a decision made in late 2014, the Quebec Court of Appeal affirmed the legal profession’s unique role in undertaking constitutional challenges. In a unanimous decision (Vezina, Savard, and Vauclair JJA), the Court upheld Justice Roy’s decision to reject the Government of Canada’s application to strike the claim of the Barreau du Quebec for want of standing. The relatively short decision, Canada (Procureur general) v. Barreau du Quebec, 2014 QCCA 2234, was released on December 4, 2014 and was a judgment “par la Cour”.
Last week, Justice Jamie Campbell of the Nova Scotia Supreme Court delivered a scathing indictment of the decision of the Nova Scotia Barristers’ Society (the “Society”) to recognize law degrees for the proposed law school at Trinity Western University (“TWU”) only if TWU changes its “community covenant” against sex outside the confines of a legal marriage between a man and woman. The focus of the Society’s concerns is that the Community Covenant would have the effect of discriminating against members of the LGBT community. His judgment (Trinity Western University v. Nova Scotia Barristers’ Society, 2015 NSSC 25) is the first of what will no doubt be a series of judicial pronouncements on the various provincial law societies’ decision to accredit or not to accredit TWU’s proposed law school. Challenges in British Columbia and Ontario are also well on their way to being heard. Yet again, the collision between equality rights and freedom of religion finds itself on the center stage of Canada’s judicial arenas. The last time this issue went to the Supreme Court of Canada was in 2001 in yet another TWU case, Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31. While the Court held that the Charter was not directly applicable in that case, it did determine that any concerns of the College of Teachers respecting the discriminatory effects against homosexuals were to be subject to the respect for the principles of the religious faith professed by TWU. Justice Campbell does not consider that the time is nigh for that 2001 judicial determination to change.
On April 11, 2014, the benchers of the Law Society of British Columbia approved the application of the future law school of Trinity Western University, a Christian faith-based university located in the Fraser Valley of British Columbia, to be an accredited law school. TWU obliges its students to sign and comply with a religious-based covenant that only sex in marriage between a man and a woman is permitted. The concern is that this covenant discriminates against gays and lesbians (and unmarried couples). The Law Society’s vote was 15 to 6 in support of the application. One of British Columbia’s most eminent constitutional scholars, Joseph Arvay, Q.C., was one of the six who opposed the application. On April 24, 2014, the Law Society of Upper Canada rejected TWU’s application for accreditation. The vote was 28 to 21 against accreditation. The next day, the Law Society of Nova Scotia met and voted 11 to 9 to approve TWU’s application — on the condition that TWU drop the requirement that its students sign and respect the covenant. In the meantime, back on the West Coast, over 1000 members of the Law Society of British Columbia signed documents demanding that the decision of the Law Society’s benchers be reconsidered by a full meeting of the membership. Only 500 such members were necessary to require such a special meeting. That meeting will have to be held sometime in the next two months. This collision between equality and anti-discrimination rights on one hand and freedom of religion has been played out before. The British Columbia College of Teachers and TWU went to the Supreme Court on this issue nearly 15 years ago and TWU won: Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31.. Before the law societies, TWU has argued that this case is no different. I must say that I disagree.