Sitting in the Supreme Court of Canada following the Trinity Western University hearing has been like watching a box of paradoxes spilled across the room.
The most pressing paradox of all is the sense that here, in the citadel of the Canadian justice system, a genuine injustice is being perpetrated. It is not an injustice dependent on outcome.
After the two days of hearings this week, an unknown number of months will pass before the nine justices render their decision on the future of TWU’s planned law school.
No one, despite some of the best legal minds in the country having front row seats to observe and parse every eyebrow wiggle of the Chief Justice, no one truly has a clue how the Court will ultimately rule.
But the very need for the small evangelical college in B.C’s Fraser Valley to argue in Canada’s highest court over its prerogative to open and operate a law school according to an ethos of Biblical belief seems past unbelievable. It seems fundamentally unjust.
Surely, in the Canada of 2017, it should be beyond even the self-multiplying questions of lawyers paid by the word that a duly accredited private religious university is entitled to open a duly accredited law school without having its duly qualified graduates obstructed from entering their chosen profession.
Even in the Canada of 2017, one might say, it seems antithetical to the very idea of natural justice that controversy should arise over something so transparently a matter of natural right.
Yet here we are. For the second time in a generation, Trinity Western has found it subjected to the various indignities of legal poking and prodding because it asks all staff and students sign a so-called Community Covenant requiring abstention from behaviour contrary to evangelical belief, including sex outside Biblical marriage between a man and a woman.
At the turn of millennium, the exact same objections heard in the Supreme Court this week were raised with regard to Trinity’s teachers’ college. Then, it was the B.C. Teachers’ College raising cries of crisis about a flood of bigoted fundamentalist Christians overwhelming the classrooms of the land and immersing innocent pupils in hate-filled propaganda about sexual minorities.
Neither jot nor tittle of evidence was ever accepted showing the risk to be real As a result the Court found in TWU’s favour in 2001.
Now, it is the law societies of B.C. and Ontario who have raised the same tattered flags of inconvenience, organizing referenda among their members and even holding a referendum to overturn previously granted approvals and permissions.
As Eugene Meehan noted dryly in his intervention on behalf of the National Coalition of Catholic School Trustees, the law society votes held to outfox Trinity were comparable to “one sheep and three coyotes voting on what to have for dinner.”
And therein lies a second paradox. Trinity Western’s plan to open a law school is opposed by some of the leading legal lights who run the law societies that effectively police lawyerly conduct in two of Canada’s largest provinces. Yet no one seems clear on where the legal responsibilities of those legal beagles begin and end. Endless hours have been taken up over the last few years, and more were consumed this week, arguing over jurisdictional and statutory interpretations of matters that a non-lawyer would assume should have been knocked into every law student’s head well before graduation. But no. Apparently not.
So, the very bodies that want to deny Trinity Western its prerogative to open a law school appear unable to agree on why that should be so, or whether it’s even permissible to try. During proceedings today and yesterday, there were plunges into statutory sub-sectional fog so opaque there were fears – in my corner of the viewing gallery at least – that the lawyers involved were about to wander blind, Arctic explorer-like, over the curvature of the earth and never return again to dear, grey Ottawa reality.
Even once the barrister-cloaking clouds parted, arguments were offered that seemed relatively clear at first, yet were revealed on a moment’s reflection to defy practical sense. For example, Guy Pratte, the lawyer representing the Ontario law society, argued intensely that his client was, in fact, bound by law to deny accreditation to Trinity Western law school. It had, he seemed to say, no other legal choice.
For example, he said, various anti-discrimination laws in Ontario would prevent the law society itself from operating a law school with a Community Covenant such as Trinity Western’s. What the law society is barred by law from doing itself, he reasoned, it cannot lawfully delegate to someone else, he said.
But if that is so, then why did the mavens of the Ontario law society vote on whether or not to stand in the way of Trinity graduates being licensed to practice law in the province? Literally and figuratively, if one’s hands are bound, one does not – one cannot – vote. Or is it the case that Ontario’s lawyers now decide what the law is, and to what use it should be put, by a mere show of (miraculously unbound) hands?
The absurdity of the claim was exposed brilliantly by lawyer André Schutten of the Association for Reformed Political Action, who seized on a light-hearted comment by Chief Justice Beverley McLachlin about what she might do following her retirement on Dec. 15.
Schutten followed through on McLachlin’s joke that she might open a law school in her basement by asking whether it would be lawful in Ontario for that hypothetical law school to be a women-only law school teaching feminist legal theory. A canvass of existing law, he said, makes it clear nothing – including the legal obligations of the Ontario law society – would prevent the erstwhile Chief Justice setting up such a school.
Likewise, Schutten added, while Canadians might recoil at the idea of a law school limiting applicants on the basis of race, such a school already exists in northern Ontario. At the school, he said, Indigenous Canadians are given preferential admissions treatment for the very laudable purpose of building the country’s cohort of native lawyers. What, he demanded, is the distinction between those two examples and Trinity Western wanting to operate its law school on the basis of Christian principle? If there is a distinction, it is one without a difference.
Paradoxically, the very difficulty of making that distinction only enhances the case of those arguing for sexual minority rights, and therefore against Trinity. For they, too, have profound and deeply troubling questions to ask about the effect on their communities of TWU’s covenant. Earlier this week, in the run up to the Court hearing yesterday and today, we invited to Convivium.ca voices from those communities, and asked them to articulate what is at stake for them. In short, their answers came down to the indignity of exclusion.
They find themselves pitted against Trinity, but they do not consider themselves “enemies” of Trinity in any way. One of them is an alumnus of TWU who called his years at the school some of the “best and most painful” of his life. It was strikingly obvious from his commentary that he wants nothing more than reconciliation with Trinity over the question of sexual identity, and deeply wants the school to find a way to reconcile with a society from which it is increasingly being excluded.
Similarly, lawyer Mark Berlin wished Trinity only the best as a Christian place of learning. Included in that wish was the hope that some day he, as a long-married gay man, might be at least eligible to teach there with his full nature fully recognized.
All this leads, I think, the greatest paradox of all. Both sides in the debate, and the legal process, use exactly the same language to express diametrically opposite ideals. Both see “nature” and “conduct” as simultaneously inviolable and malleable.
For the advocates of sexual minorities, sexual conduct is intrinsic to sexual nature. You must be able to express your sexual self or you deny your whole self. Belief that stands in the way of that can be modified at least to the extent of accommodating the conduct of those who disagree.
For those on the evangelical Christian side, Biblically ordered sexual (and related) conduct is intrinsic to Christian nature. To deny that, is to deny your whole Christian being. Claims that stand in the way of that can be modified at least to the extent of accommodating Christian obligation (or Christian fact.)
Whatever the rights and wrongs of such contested questions, the one place they can never, ever be properly resolved is a court of law. They are not, after all, legal questions. They are, in fact, the questions from whose answers the law arises and develops. Yet here we are, the citadel of Canadian justice seeking to resolve matters that are both before and beyond the capacity of the law to settle.
Yet sitting in the Supreme Court this week as this box of paradoxes poured out in front of me, I felt a surge of joy at the very paradoxical situation itself. For in contrast to the deficiencies of Canada’s legal system on display are the horrors of the wider world. Grappling with such questions is not, in countries we can rhyme off on our fingertips, occasion for the interplay of mystification and brilliance, confusion and intellectual inventiveness. It is the occasion for guns, knives and blood. It is not the occasion for ask-and-answer. It is the occasion for violence and death.
It is frequently said these days that our diversity is our strength. Perhaps. But watching the Trinity Western case play out showed far more importantly, that even when justice and injustice are on the line – indeed, especially when they are on the line – our quarrels are our greatness.
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