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Regimes of ToleranceRegimes of Tolerance

Regimes of Tolerance

The Law Society of Upper Canada and the Nova Scotia Barrister's Society have decided that while the institution that teaches lawyers in British Columbia—TWU's forthcoming law school—is constitutionally acceptable, its graduates are not fit to practice law. That is, neither LSUC nor NSBS have submitted that Trinity Western's code of conduct policy is unconstitutional—they know this because the Supreme Court ruled very clearly that it is constitutional. They also are fully aware that in the same decision, regarding teachers who were taught at TWU and were required to sign the same Community Covenant, there was, as Albertos Polizogopoulos put it last week, "no evidence that TWU's students, who had signed and abided by the Community Covenant, demonstrated any discriminatory behaviour in the exercising of their duties as teaching professionals."

Brian Dijkema
3 minute read
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If law societies are, so to speak, the marrow which supplies blood to our legal system—a society which has, as its very raison d'etre the "duty to protect the public interest, to maintain and advance the cause of justice and the rule of law"—it would appear that certain provincial limbs in Canada are suffering from leukemia.

The Law Society of Upper Canada and the Nova Scotia Barrister's Society have decided that while the institution that teaches lawyers in British Columbia—TWU's forthcoming law school—is constitutionally acceptable, its graduates are not fit to practice law. That is, neither LSUC nor NSBS have submitted that Trinity Western's code of conduct policy is unconstitutional—they know this because the Supreme Court ruled very clearly that it is constitutional. They also are fully aware that in the same decision, regarding teachers who were taught at TWU and were required to sign the same Community Covenant, there was, as Albertos Polizogopoulos put it last week, "no evidence that TWU's students, who had signed and abided by the Community Covenant, demonstrated any discriminatory behaviour in the exercising of their duties as teaching professionals."

In short, students who are taught at TWU are presumed —before the school has even produced a single graduate—to be so bigoted as to not be worthy of practicing the same law which upholds the right of their school to teach them and to require them to sign a commitment to a particular conception of sexual conduct. In other words, future students will not be allowed to practice law in Ontario or Nova Scotia, not because the school is doing anything unconstitutional or contrary to the law, but because they will have made the error of attending a school who's commitments, while perfectly and demonstrably constitutional, and therefore legal, are in error. And, according to the benchers, "It is contrary to reason that error and truth should have equal rights."

Actually, you know who said that? That was Leo XIII, writing from a time before the Roman Catholic Church had fully embraced religious liberty. That's right: two of the societies responsible for "advancing the rule of law" in this country are willing to forget the law, and make decisions about who may practice on the basis not of what people do, but on what they believe.

It might surprise you that those responsible for upholding the standards of law in our liberal democracy have taken upon themselves the role formerly held by Inquisitors, but it should not.

As Jonathan Chaplin notes in Comment:

Liberalism [does not] bring about a universal realisation of "tolerance." ... Every political system, not only authoritarian ones but liberal ones as well, is a "regime" which facilitates a particular zone of toleration, and simultaneously demarcates clear boundaries to such toleration. These will often be legal boundaries imposed, if necessary, with coercion. Such boundaries are acts of intolerance.

Chaplin notes that such boundaries of tolerance are necessary for any society to live together in peace and order. But he also notes that if we take the boundary of tolerance which we would expect from the state and apply it to all social institutions and individuals, we will increasingly end up looking more like the regimes of intolerance—akin to Cuba, Zimbabwe, Iran. Just as it was inappropriate to apply the regime of tolerance found in the church to matters of the state (which is really the problem of the Spanish Inquisition), so it is inappropriate to take the regime of tolerance appropriate to the state and apply it to churches or other institutions—like law schools. What Chaplin argues for is a:

particular regime of tolerance, one marked by institutional differentiation, and which secures a specific "menu of toleration." In such a regime, among other things, state-enforced religious confessions are not tolerated, civil society associations are relatively free to manage their own affairs free of intrusion or domination by public authorities, and individuals are substantially free to hold and voice their own convictions on almost anything.

What is at stake is whether we are willing to place one civil society association's regime of tolerance (TWU) against another's (LSUC and NSBS). The difference is that the law societies know that the state is willing to tolerate TWU as institution, and are targeting their intolerance at individuals who choose to associate with them. It's likely that this attempt to target their intolerance on particular individuals will be headed to the Supreme Court, which will be faced with the decision about how it wishes to shape its regime of tolerance. It's done so already, but let's hope they continue to take up the regime advocated by Iain Benson:

The state must not be run or directed by a particular religion or "faith-group" but must develop a notion of moral citizenship consistent with the widest involvement of different faith groups (religious and non-religious).

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