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Judicial IdiosyncrasyJudicial Idiosyncrasy

Judicial Idiosyncrasy

Lawyer Barry Bussey, who argued as an intervenor in the Trinity Western University hearings last winter, says Canadians must demand their legislatures protect religious freedom from a Supreme Court that seems to have lost its way.

Barry Bussey
3 minute read

Last Friday’s Supreme Court of Canada (SCC) decisions on Trinity Western University call for freedom-loving Canadians to courageously stand up and demand change to legislation governing the law societies in this country.  

We need our legislatures to ensure that court decisions that impinge upon or remove the right of freedom of religion are nullified. Critics say religious freedom amounts to the “right to discriminate”. However, it is time that the dissenting decision of Justices Côté and Brown be implemented legislatively to further not discrimination, but accommodation of religion. Their dissent is a reiteration of the right that already exists in our Charter document as the fundamental freedom of “conscience and religion.” 

The Supreme Court of Canada limited that right on June 15, and now citizens must demand it be restored.

The Supreme Court’s infringement of religious freedom involved TWU and the law societies in B.C .and Ontario. The Court gave the societies the latitude to get involved in the admissions policies of a private religious university that wanted to obtain accreditation for a law school. 

Despite the Federation of the Law Societies of Canada’s 2013 decision to accredit TWU’s proposal, the legal elites of this country – composed of the law school deans, the legal academics, and the governors of the profession – called upon the law societies to have the “courage” to conduct their own separate investigation of TWU’s practice of requiring students to sign on to its religious understanding of sexual morality. TWU has the audacity, in 2018 no less, to maintain, as a religious entity, that its students and faculty follow its religious teachings, including the requirement that sex be reserved for the traditional marriage of one man and one woman. 

However, that belief and practice offends those who think sex should be whatever any individual wants. They say it “hurts” them to see a religious entity take that stand.  So, naturally, they took it upon themselves to ensure that a religious university that wanted a law school must adopt their view of sex – sex without restriction. 

Remember, attendance at TWU is voluntary. No one is required to attend TWU.  In the same way, no one is required to attend a church or a church-run school. It is a private religious organization designed for religious people who believe and live their lives the same way. That, it seems to me, is part of living in a free and democratic society. 

You want sex? Go for it. But if you want to attend a private religious university that says “no” to unrestricted sex, then abide by the rules. You are not forced to go. Besides, if you don’t share the same moral convictions, why would you want to? Demanding the university to adopt your view of sex is an abuse of power.

Three law societies – in Nova Scotia, Ontario, and B.C. – answered the call of the legal elites to courageously force this religious institution to accept their secular vision of no-holds barred sex.  TWU won in all courts except in Ontario. Nova Scotia lawyers did not appeal to the Supreme Court. 

On Friday, the Supreme Court agreed with the legal elites and said even though TWU is a private, religious university, and even though the Charter does not apply to it, it must follow “Charter values” – that “amorphous” concept described by Justices Côté and Brown as “the product of the idiosyncrasies of the judicial mind.” 

Using “Charter values,” the SCC tried to force TWU into the mold of a government actor, claiming TWU must accept the “Charter value” of “equality” and let in all students regardless of their sexual predilections.  Welcome to the “Sexular Age” in which permissive sex trumps religious freedom even in private religious schools. 

The Supreme Court suggested its conclusion represented a proportionate balancing of rights. Yet its decisions lacked coherence on fundamental issues: the judges all disagreed about central, core concerns. One judge even found there was no discrimination – something not a single one of the 18 lower court judges decided or found. Given the inconsistencies within these decisions, it is time for Canadians to have the courage to stand up against nebulous “Charter values” and demand that provincial and territorial legislatures make changes to the acts governing law societies. We must ensure that “public interest” does not give law societies the power to determine what private, peaceable, law-abiding religious universities teach on sex or any other fundamental human life issues such as marriage, abortion or end of life. 

 Canadians of all stripes, religious or non-religious, must stand up for the rights of all. We cannot allow our freedom to be taken away by a court that has clearly lost its way.

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