In this issue:
freedom of religion, "charter values," equality, meaningful pluralism, human rights and religious exemption provisions
The British Columbia College of Teachers ("BCCT") is the governing body of the teaching profession in BC. Part of its statutory mandate is to establish standards for the education and competence of its members, "having regard to the public interest". Trinity Western University ("TWU"), a fully accredited private university founded on religious principles, sought (and was denied) full accreditation from the BCCT for its teaching program.
The root of the dispute between TWU and the BCCT is the content of a statement of community standards which TWU requires that its students agree to observe (although not necessarily agree with). The statement sets out the responsibilities of the student in contributing towards "an atmosphere that is consistent with [the] profession of faith". As part of maintaining this atmosphere, one section of the statement requires that students "refrain from practices which are biblically condemned", including "...premarital sex, adultery, and homosexual behaviour". Despite a committee recommendation that TWU's teaching program be approved, the BCCT ultimately denied accreditation on the basis that "the proposed program follows discriminatory practices that are contrary to the public interest and public policy", on the basis of the statement that "homosexual behaviour" is biblically condemned.
The trial judge overturned the Council's decision, and directed the BCCT to approve TWU's application. That decision was upheld by the B.C. Court of Appeal, and the BCCT appealed further to the Supreme Court of Canada.
This case corrects a widespread flaw in the reading of contemporary Charter adjudication—a flaw that has consistently worked to the disadvantage of persons of religious faith. In its place, the Court demonstrates a broad, contextual reading of the Constitution, which recognizes the many places in the Charter and elsewhere where the needs of religious persons and institutions are advanced. The Court displays a sensitive understanding of the purpose of religious institutions, and attempts to ascertain and balance the true needs of the public education system together with freedom of religion.
An 8-1 majority of the Court denied the BCCT's appeal, and ordered it to approve TWU's education program, subject to the conditions set out by the BCCT's practice committee.
Justices Iacobucci and Bastarache, writing for the majority, held that it is within the jurisdiction of the BCCT to determine whether teaching candidates are of suitable character to enter the profession. The BCCT's mandate is not concerned solely with the skills and knowledge of prospective teachers, but also the ability of candidates to fulfil their roles in developing civic virtue and responsible citizenship, and in maintaining a teaching environment free of prejudice and intolerance. The BCCT is authorized to consider all aspects of the education program at TWU, including the code of conduct which its students sign.
Determining what is in the public interest, in this case, requires reconciling competing claims of rights. This is an exercise in which the governing body of teachers has no special qualification; "the Council is not particularly well equipped to determine the scope of freedom of religion and conscience and to weigh these rights against the right to equality in the context of a pluralistic society." Therefore, when courts review decisions of the Council of the BCCT touching on human rights, they will not be deferential to its decisions.
The majority of the Court held that the Council's speculative conclusion that TWU graduates would likely be ill equipped to deal with homosexual students was based on a perception rather than any evidence of actual discrimination. The Court noted that there was no evidence before it of any TWU graduates having engaged in discriminatory behaviour in the classroom. Instead of direct evidence, the BCCT inferred institutionalized discrimination from TWU's code of conduct, from which the BCCT claimed a reasonable apprehension that TWU students would be unable to provide a supportive environment for homosexual students.
The majority held that the BCCT was correct in its assessment that homosexual students would likely not want to attend TWU due to the requirement to sign the code of conduct. The Court held that it was also correct to evaluate the impact of TWU's admission policy on the public school environment, and to consider concerns about equality. However, the majority held, the BCCT was in error, and acted unfairly, in concluding without any evidence that TWU students would likely be unable to provide a supportive classroom environment.
The BCCT also erred by disregarding the dimension of religious freedom. The BCCT should have noted that in addition to protecting against discrimination based on sexual orientation, s. 15(1) of the Charter equally protects against discrimination based on religion. For further evidence of a societal commitment to preserving religious freedom, the majority noted that s. 2(a) of the Charter also protects freedom of religion and conscience, and that BC's human rights legislation accommodates religious institutions by permitting them to favour adherents of their own religion in admissions policy. And, s. 93 of the Constitution Act protects the existence of public religious education in some provinces.
The majority noted the hardship caused to TWU and its students by the BCCT's decision. The decision of the BCCT, it said, places "a burden on members of a particular religious group and in effect, is preventing them from expressing freely their religious beliefs and associating to put them into practice. If TWU does not abandon its Community Standards, it renounces certification and full control of a teacher education program permitting access to the public school system." This burden was imposed by the BCCT without "concrete evidence that such views . . . will have a detrimental effect on the learning environment in public schools." That is, it was imposed without sufficient reason.
The majority concluded that "freedom of religion is not accommodated if the consequence of its exercise is the denial of the right of full participation in society. Clearly, the restriction on freedom of religion must be justified by evidence that the exercise of this freedom of religion will, in the circumstances of this case, have a detrimental impact on the school system." Given that there was no such evidence, "the BCCT acted on the basis of irrelevant considerations. It therefore acted unfairly." The BCCT was ordered to certify TWU's education program.
Justice L'Heureux-Dubé began from the position—contrary to that taken by the majority—that the BCCT was not required to deal with complex issues of human rights law, and has special expertise in making decisions regarding the standards of the teaching profession, which is all it was doing. Courts are only at liberty to overrule a decision of the BCCT, she said, if it is "patently unreasonable" rather than merely wrong. As a result of this greater degree of deference, it was not necessary for her to defend the BCCT's decision as correct, only as not unreasonable.
With respect to the applicability of "Charter values", Justice L'Heureux-Dubé agreed with the BCCT that of the "values" in the Charter, only "equality" is relevant to defining the public interest. "Public interest", in this context, is limited to the ability of teachers to perform their duties. The only duty in question is the ability to provide a supportive atmosphere to homosexual students. Other "Charter or human rights values such as freedom of religion ... are not germane to the public interest in ensuring that teachers have the requisites to foster supportive classroom environments in public schools." The BCCT, she said, is concerned only with risks to students and need not (and indeed must not) consider extraneous factors such as the religious freedom of teachers.
Justice L'Heureux-Dubé rejected TWU's argument "that one can separate condemnation of the 'sexual sin' of 'homosexual behaviour' from intolerance of those with homosexual or bisexual orientations." It is not possible, she said, "to condemn a practice so central to the identity of a protected and vulnerable minority without thereby discriminating against its members and affronting their human dignity and personhood."
It is simply not relevant, she said, that TWU teachers tendered no evidence of any overt discrimination. The issue is not overt discrimination, but whether TWU teachers have a "lack of preparedness" to teach homosexual students. By signing the code of conduct, she said, TWU students are complicit in an act of discrimination. It is reasonable for the BCCT to conclude that this act could give rise to a perception that a graduate of TWU would be unable to be supportive of homosexual students. The perceptions of TWU teachers by students, parents, other teachers, and others is a factor "potentially affecting the public school communities in which TWU graduates wish to teach."
Over the course of affirming the suitability of TWU's education program, the Court corrects some common and superficial misunderstandings about discrimination, pluralism and religion in Canadian law. It corrects a widespread flaw in the reading of contemporary Charter adjudication that has consistently worked to the disadvantage of persons of religious faith. The 8-1 majority judgment will need to be carefully considered by all public bodies—and in particular by quasi-judicial tribunals—who have now been reminded that whatever their mandate, they must give due regard for the needs of all within their jurisdiction. In particular, they have been directed not to read "equality" as though it applies only to one group so as to eclipse another (in this case by making religion "invisible" in the manner advocated by the dissenting judge and practised by the BCCT).
The BCCT is required to make accreditation decisions in the "public interest". Much of this case turns on what the "public interest" requires. The BCCT argued that the "public interest" is limited to concern for the equality interests of students, and excludes the question of the religious freedom of teachers. The majority, however, strongly affirmed the place of religious peoples and institutions in Canada, and rightly pointed to the many aspects of Canadian law that recognize this feature of Canadian society. The relevance of the rights of its own members to its decision-making ought to have been obvious to the BCCT from the outset, let alone through three successive losses in court.
Were the BCCT to be consistent, its policy of disregarding conflicting rights claims and evaluating policy according to a single criteria—equality—would commit it to absurd results. Provided that the reason for a policy was the promotion of equality in the classroom, it would allow for the most draconian restrictions on teachers' lives. It could justify conditions reminiscent of a medieval university, where teachers would be required to live on site, renounce having families, and be on 24 hour call—all if these conditions were found to have beneficial effects for the classroom.
According to Justice L'Heureux-Dubé, these sorts of problems should be left to human rights tribunals and the criminal law to sort out after the fact. The rest of the Court, however, determined that it is not too much to ask that a professional governing body bear in mind the fundamental freedoms of its members when making policy decisions.
The Charter and Pluralism
The BCCT was entirely justified in its concern to observe the principles of equality underlying the Charter and human rights law. But how is it that it ever could have thought that taking into consideration one principle of Canadian law excused it from observing the rest?
The idea that the Charter's equality provision provides the whole story in interpreting a provision like "best interests" has become distressingly familiar. It is a simplistic reading of the Constitution that is at odds both with a competent reading of Canadian law and a meaningful pluralism. The Constitution as a whole provides a sketch of how Canadians have chosen to order public life. As can be expected, it seeks to accommodate the diverse ways in which persons can seek to promote their own good and the good of others. Taking one provision of the Constitution in isolation (and in this case, only reading one constitutional document—the Charter) cannot yield either an accurate reading of the Constitution as a whole or the particular provision in question. As the Court has held on many occasions, each section of the Charter must be defined in relation to the document as a whole and placed in a context that takes into account history, philosophy and religious principles.
Thus, when it comes to constitutional law, the BCCT is not free to pick and choose. It must take the whole of the Constitution in its proper context. The BCCT's research ought to have been supplemented with a reading of s. 15(1) and s. 2(a) of the Charter—both of which protect aspects of religious freedom—and s. 93 of the Constitution Act which entrenches religious public education rights into the Constitution. Additionally, the BCCT ought to have considered that the legislature of BC has created an exemption in the Human Rights Code in favour of religious institutions, and that it has on five separate occasions passed bills in favour of TWU. This legislative record suggests that the legislature "does not consider that training with a Christian philosophy" is against the public interest.
The BCCT (and worryingly, Justice L'Heureux-Dubé) found these factors—each pointing to the polity's recognition of the importance of accommodating religious communities—to be irrelevant to the determination of the public interest. This was the result of an inflation of the claims/needs of one select group and the disparagement of the claims/needs of others.
Perhaps it seems churlish to complain about the losing arguments and sole dissent in an 8-1 decision. Unfortunately, the illiberal and partial view of "equality" pursued by the BCCT is by no means unique to the BCCT. Similar reasoning—not supported by a sound reading of Canadian law—can be found in other governing bodies, in decisions of tribunals (see for example, Brillinger v. Brockie, LexView 38.0), and reasons for judgment of lower court judges (see the trial judgment of Chamberlain v. Surrey School Board, LexView 25.0, overturned by a unanimous Court of Appeal, LexView 40.0). Though it is a tremendous development to have the Supreme Court of Canada so strongly oppose this misreading of constitutional law, it is distressing to have even one judge in dissent lending credibility to a line of thinking which systematically devalues religious beliefs and practices.
Misunderstanding the Value of Religious Institutions
Where is it that so many cases involving religious peoples and institutions go wrong? It seems likely that it is in the judge's (or other decision-maker's) failure to understand the value of religious practice or exercise of conscience in question. The BCCT, for example, gave no indication that it understood the purpose of the community standards code. Without properly understanding its purpose, it could never properly understand its value. And without understanding its value, it could not have been in a good position to assess the hardship that it was imposing on TWU and its students.
What, then, was the reason that TWU instituted its code of conduct? What and whose interests is the community standards code meant to serve?
The code is not intended as a manifesto of the administration to defy the mores of wider society. The code is kept in place for the benefit of students who go to TWU seeking a particular religious environment that supports and encourages their desire to mature in their Christian faith while gaining the benefit of higher education. As long as a decision maker does not appreciate the worth of the endeavour, and mistakes a pledge to keep to an exacting standard of interpersonal morality for animosity towards homosexuals, the value of TWU and other religious institutions will be misunderstood.
The majority of the Court understood this point well; "TWU is not for everybody; it is designed to address the needs of people who share a number of religious convictions." If TWU were to be remade so as to become attractive to homosexual and lesbian students who wish to remain sexually active (or to married heterosexuals who wish to act adulterously) and thus placate the BCCT, it would cease to serve this purpose. If, instead, it consented to having its students supervised by another university, it would to this extent forfeit its mission. For pluralism to be meaningful, it has to accommodate and respect a wide range of valuable beliefs and practices, not just those of the majority.
The decision also stands as an important affirmation of the place of religious exemption provisions in human rights legislation. The majority judges commented on the presence of such a provision (common in most human rights legislation) and noted that it indicates a broad social acceptance of respect for religion and diversity in society.
The Court has, in this decision, set the stage for a richer vision of "equality" and "discrimination" than that argued for by the BCCT and rejected by 8 out of the 9 justices of the Supreme Court. It remains to be seen how the respect for conscience and religion fair when individual teachers refuse to perform acts that they consider supportive of homosexual or lesbian conduct. In light of this decision, religious groups retain the ability to affirm the distinction between respect for homosexual or lesbian persons and rejection of homosexual or lesbian conduct. The majority did not join with Justice L'Heureux-Dubé in her lone rejection of this well-established principle. This is a positive development since a forced merger of respect for homosexual and lesbian conduct with respect for human dignity, would go against the mainstream views of every major world religion.
In light of this decision and that commented upon earlier in Chamberlain v. Surrey School Board, LexView 25.0, public educators and bodies such as the BCCT should reflect upon what matters are proper for the school curriculum in a pluralistic and multicultural society. The principles emerging from the most recent decisions strongly suggest that attempts to coerce an acceptance of homosexual and lesbian conduct—as opposed to requiring respect for persons as persons—might well be outside the bounds of public education. Despite Justice L'Heureux-Dubé's impassioned protest to the contrary, on this issue the maxim that one can "love the sinner but reject the sin" remains the reality in Canada and has not been found to breach the provisions of Canada's constitutional arrangements.
This issue of LexView was researched and written by:
Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar
Brad Miller, B.Comm., LL.B, LL.M. (magna cum laude) of the British Columbia Bar.
LexView is a project brought to you by the Cardus Centre for Cultural Renewal, a not-for-profit agency. LexView is made possible through the donations of foundations, corporations and individuals. To inquire about making your contribution, please contact Cardus.
Copyright © 2010 Iain Benson and Brad Miller
LexView is an on-going review of judgments of Canadian courts that have an impact on the complex interrelationships between law, public policy, culture, moral reasoning and religious belief.
Please note that LexView is not intended to constitute legal advice and the interpretation and comments are those of the authors alone and are not necessarily those of the Editorial Board.
Copyright notice: LexView may be copied, printed, and re-transmitted by e-mail, provided that the copying, printing, or re-transmission is not for commercial purpose. Portions of LexView less than a single paragraph may appear in broadcast, print or other media, provided that proper citation is made. Otherwise, LexView may not be reproduced, in any form in broadcast or print media without express written permission. Permission may be obtained by application to firstname.lastname@example.org.