Category Archives: Law

Sometimes the Law is not an Ass—it is much worse than that

Recently Manitoba has been the location of an incident that I should catch international attention for its idiocy.  If it hasn’t  happened yet, I suspect it will. The international media just hasn’t caught on to how stupid we can be.

The incident happened at our esteemed Law Courts in Winnipeg. A Winnipeg lawyer represented an  indigenous person from Ontario who had been arrested and placed in the Winnipeg Remand Centre as a result of breaching a court order that he abstain from alcohol. He had to pay a $20 cash deposit on his bail, which had been granted by the court, in order to get released from the Remand Centre.  He had agreed to the $20 payment thinking that was how much money he had. Unfortunately, the mantas 5¢ short. Since he was from Ontario and had only intermittent access to a phone, he cold not call anyone for help and spent the weekend in jail because he was unable to pay the full amount. No one would let him even though he only owed 5¢.

On Monday morning his lawyer discovered what had happened and returned to court to pay the outstanding amount. In fact, a sympathetic, and reasonable Magistrate, gave his defence lawyer a nickel to pay the outstanding amount. The lawyer got a receipt for the $20. The lawyer thought that this was the end of it. The entire cash required had been paid. Unfortunately, the lawyer did not understand the astounding ignorance of the law.

The following morning the defence lawyer learned that there had been a mistake. It turned out that his client had been 35¢ short. Much more than 5¢! So the hapless client had to stay in jail for the entire night because he could not pay the extra 30¢. So the client was transferred to Milner Ridge Correctional Facility, about 100 km away, because the space in the Remand Centre was needed for incoming prisoners. The defence lawyer had asked that his client remain until the bail was paid., but his request went unheeded—perhaps because the client was indigenous. Its  funny (not) how such incidents happen to them, rather than fine white people. As well the client had no one in the city that he could call for a tiny bit of cash to rectify the mistake.

When the client reached Milner Ridge the lawyer thought he would be released. Unfortunately, Milner Ridge had no facility to electronically access the client’s cash deposit which had been paid in Winnipeg. It was paid but he still could not get out of jail! After all his bail had been paid, so he thought. When the lawyer learned of this he returned to the courthouse and paid the client’s cash deposit himself. The client was returned to Winnipeg and was  released from jail a full week after he had been taken into custody. He stayed in jail for a week because the authorities thought he had not paid the outstanding 35¢ that actually had been paid.

While he was in jail he missed taking his prescription medication, which he needed because of a prior condition related to his addiction to OcyContin and his heart was alternately racing or slowing down. He was in serious jeopardy.

The Winnipeg Free Press reported, “According to Statistics Canada figures for 2016-2017 the average cost to house a prisoner in a provincial institution was $213 a day.” So taxpayers paid more than $1,400 to house this indigenous prisoner  even though he had paid all of his bail after being 35¢ short initially.

The Crown later stayed the charges. This means that the client was an innocent man! Innocent until proven guilty remember.

Charles Dickens said that the law was an ass.  Sometimes, Charles Dickens should have said it was much worse than that.

The Court of Public Opinion

 

The court of public opinion does not require proof beyond a reasonable doubt. The court of public opinion makes its own evidentiary rules. In the court of public opinion we can consider hearsay, we can hear opinion evidence given by non-experts, we can accept leading questions, and can violate all kinds of other valuable rules of evidence. But all of us sitting in judgement in the court of public opinion should learn from the courts of law. They have some good ideas.

In the court of public opinion we should remember to listen to both sides. We should exclude dubious evidence. We should reject specious arguments. We should make our decisions based on the best evidence we can muster. We should not rely on second hand stories. We should be on guard against bias. We should keep an open mind. We should not base opinions on junk science. We should cross-examine those who testify to us (if we can). We should employ reason in weighing the evidence, rather than faith, emotion, feelings, or instincts. We should not guess or leap to conclusions. We should be diligent. We should do all these things (and more) if we are actually trying to discern the truth. We should try our best to be ideal observers.

Of course if we just want to mouth off none of this is necessary.

Abuse of Power

In my last post I talked about Michael Jackson. I suggested that we did not have enough evidence to convict him. Besides, he was charged and acquitted by a jury that heard all the evidence, all the arguments, and all the irrelevant evidence was excluded. We are not in that position and must remember that.

That does not mean we can’t have our opinions. In a court of law the prosecution has a high standard of proof that it must meet before the judge or jury as the case may be, is entitled to find Jackson guilty. Jackson is entitled to be acquitted unless the evidence proves beyond a reasonable doubt that he was guilty. That is a very high standard. That same standard is not applied in all circumstances. It is much a higher than the standard of proof in a civil case.

That is why even though O.J. Simpson was found not guilty of murder, he was nonetheless successfully sued by his widow’s family for damages for her death in a civil trial. In a civil trial the plaintiff (the one suing) only needs to prove the case against the defendant (such as O.J.) on a balance of probabilities. In other words the plaintiff only has to prove that it was probable or likely that O.J. killed his wife. If it is proved that it was likely that O.J. killed his wife he can be held liable for the damages he caused in a civil suit, even though he was found not guilty on a criminal charge.

I will give you an example. If a son acquires property from his elderly parent without paying fair market value for that property and it is established that the parent was under the influence of the son and subsequently a daughter of the parent alleges that the son used undue influence to get that property without paying for it, the son is required to prove that he did not use undue influence. The son must prove that the parent exercised his or her own free will to make the gift and unless the son can prove that, the son will be required to disgorge the gift. The daughter is not required to prove that the son (her brother) used undue influence over their parent, the son must prove that he did not use undue influence. The onus of proof is on the one who gained the advantage while he was in a position of power over the vulnerable giver. This is as it should be.

This can apply the same way to others who are in a position of power over a vulnerable person. This could include the doctor of the parent, or lawyer, or accountant, or parent, or minister, or employer, or anyone else in a position of superior power over the person who made the ‘gift.’. The law presumes that undue influence was used until the person who benefitted rebuts the presumption and proves otherwise by satisfactory evidence.

This is good law. We can all learn from it. I think it can help us to understand what we might want to think about the Jackson case. Even though we acknowledge that there was insufficient evidence to prove he was guilty beyond a reasonable doubt. That high standard only applies in a criminal trial.

In a civil case sometimes the same principle is applied and might apply to someone like Michael Jackson. If he was in a position of power over a vulnerable person by reason of his wealth, fame, and power he should be forced to prove he did not misuse that power. The onus of proof should be on the powerful person not on the vulnerable person who might have been abused. Michael Jackson might be entitled to an acquittal in a criminal court, but what about the court of public opinion?

Gray Mountain

https://www.dropbox.com/s/xacoebo7zns77ok/Screenshot%202019-03-14%2021.09.42.png?dl=0

 

Gray Mountain, by John Grisham, is in some ways a traditional Grisham novel. He often has great ideas that get you interested right off the bat. This was no exception. A Young Wall Street Lawyer gets laid off after the Financial Crisis of 2008. As a severance perk the firm pays for her health insurance if she agrees to work pro bono for a charity. As a result she finds a job with a Legal Aid firm deep in Virginia. There she discovers Appalachia and all that comes with it, including coal. The coal industry is up to its  old tricks and some employees need legal help in dealing with Big Coal.

Sadly, like most Grisham novels in my opinion, he starts off with a great idea that fizzles because he does not know how to finish it. Grisham is like a good starting pitcher who needs a closer. This book is in that strong tradition. It fizzles  at the end. In the meantime it did provide an entertaining read.

Before it ends, the heroine, Samantha helps a number of indigent people who were getting screwed. The saddest of her cases involves a coal miner who contracts Black Lung disease for which he is entitled to be compensated, but the system, and all embroiled in it, use that system to deny benefits. Samantha in the best tradition of the law tries to get redress. Big Coal resists. As Grisham writes, “coal companies are brilliant when it comes to finding new ways to screw people.”

As Grisham writes:

Chester said, “it’s a favorite trick in the coalfields. A company mines the coal, then goes bankrupt to avoid payments and the reclamation requirements. Sooner or later they usually pop up with another name. Same bad actors, just a new logo.”

“That’s disgusting,” Samantha said.

“No, that’s the law.”

Grisham is nothing if not cynical about lawyers and the law. But in recent years he has also painted the other side of the story, with lawyers like Samantha. There are some good lawyers too. This is what she learns from another lawyer, talking about court rooms, “I love them. It’s the only place where the little guy can go toe-to-toe on a  level field with a big, crooked, corporation. A person with nothing–no money–nothing but a set of facts can file a lawsuit and force a billion dollar company to show up for a fair fight.” That is the majesty of the law.  Even if the fight is not always fair, often it is. Often it brings justice. That is a pretty good thing.

For another client she helps, when no one else will, Samantha realizes this on her way home:

“As she drove away from the Starlight Motel, Samantha realized she had spent the better part of 12 hours aggressively representing Pamela Booker and her children. Had she not stumbled into the clinic that morning, they would be hiding somewhere in the backseat of their car, hungry, cold, hopeless, frightened, and vulnerable.” Again, a pretty good thing.

Sometimes– maybe not often enough, but sometimes–lawyers can be proud of what they do. Damn proud.

A Christmas Miracle

Bim (AKA Roy Forbes) once said if you did not believe in miracles you might be taking bad advice. I always feared this applied to me. No more. A Miracle just occurred and very near to Christmas at that, but  there has not been a lot of talk about it in the media.

Just when it seemed impossible, the Democrats and Republicans in the US, who normally can’t agree on what day it is,  have joined together with President Donald Trump in an amazing agreement for criminal justice reform. They have agreed to eliminate many of the most horrific mandatory minimum sentences that were intended to tie tied the hands of liberal judges in the US, but which led to many outrageous criminal sentences. In a remarkable bill that enjoyed widespread non-partisan support and was lauded  by President Trump as his first non-partisan triumph, truly significant criminal justice reform was actually achieved.

Currently the US has the highest rates of incarceration in the entire world. At this time more than 2 million Americans are behind bars, with African Americans disproportionately represented, of course.

I was shocked to see Mark Holden Senior Vice President and General Counsel for the Koch Industries, famous for being ultra rich conservatives, together with Van Jones, former staffer for Obama, who both backed the bill. Jones called it a “Christmas miracle–you have to believe it to see it.” Holden said his people believe in fundamental liberties, equal justice, and second chances. He admitted that for the last 30 or 40 years the criminal justice system has been a poverty trap and has not made Americans safer.  A lot of money and human potential has been wasted on it. In the past decade or so Americans have learned from the success of states like Texas, South Carolina, Georgia, Delaware and others, that you can keep people safe and make sure criminals are being rehabilitated while they are in prison and when they come out they are less violent, less trouble, more productive, and you save a lot of money. What conservative would not like that?

In the last few years, a conservative state like Texas has closed down 8 prisons and saved more than 8 billion dollars and now has crime rates that  have not been that low since the 1950s! Understandably, this has many conservatives and liberals in the US excited. Jones says the left and right have come together for a principled reason. Conservatives who believe in limited government, or who are Christians who believe in the importance of human dignity and second chances, and libertarians who hate to see government chew up rights, are all offended by the mass incarceration in the US. People on the left who are concerned about social justice, racism, and such issues are also offended by the mass incarceration. Holden admitted, “The war on drugs has been a massive failure. We need to look at the criminal elements within that and treat them as crimes, and treat them proportionately for what they do, but by and large a lot of other people in the system are really a public health issue, a poverty issue, a substance abuse issue, mental health issue, or maybe they just need a chance, because they come from a place where they don’t have good schools, good programs, or mentoring. Lets not just lock them up. We’re way too anxious and alarmist around criminal justice issues just to lock people up…There are people who need to be in prison, but most don’t.”

People around the world are disturbed by what is happening in the US. A big part of what has made politicians reluctant to engage this issue has been fear. After all, giving benefits to prisoners who often don’t have the right to vote as convicted felons and don’t make political campaign contributions is difficult for politicians to support, since some of these prisoners will re-offend and hurt someone. Inevitably this will lead to a public outcry and may end the political career of the politician who helped make this happen. Fear drives the politicians.  They must be persuaded to overcome fear and to support measures like the current American legislation. They must see that the current system is madness.

Some political leaders have come to understand that having people in prison who don’t’ really belong there come out with deep resentment. As Jones said, “Prison makes them bitter not better,” and that is not good for society.

As Criminal justice advocate Brian Stevenson said, “we have a two-tiered system—the rich and guilty get a better deal than the poor and innocent.” We need a criminal justice system that serves all of us. We should not have a system where justice depends on the amount of money the charged person possesses. As Holden said, “If you are middle class or working class or one of the least among us living in desperate circumstances you cannot fight the federal or state government for it becomes a situation that once you’re in the system and don’t have resources you are pretty much branded for life with the scarlet letter “F” (for felon). That is completely unfair.” And whether you’re on the left or the right you should be able to see that.

We should not think this issue is limited to the US.  It is most dramatically demonstrated there, but we have it in Canada too. We too have obscene sentences imposed on vulnerable people unable to defend themselves against the powerful state and its zealous officials, all because of mandatory minimum sentences. We have to resist political leaders who try to convince of the need for mandatory minimum sentences by frightening the voters.

Canada not that long ago under the leadership of our local MP who was also the Minster of Justice,  Vic Toews,  brought into Canada a large number of mandatory minimum sentences all in the name of getting “tough on crime.” He did this just when the legislators he was imitating in the US were starting to realize these minimum sentences ushered in horrible injustices and did little to reduce crimes.  Even though these laws were good examples of “lose/lose,” that did not stop our local MP, Ted Falk, from crying with mock horror when Trudeau made a modest incursion towards reducing mandatory minimum sentences, again trying to show Conservatives were “tough on crime” while liberals were “soft on crime.” We have to remember, fear is seldom a sound basis for making important policy decisions.

Miracles can happen.

People are entitled to the presumption of innocence and Judges should not be rapists or harassers

The recent hearings in the US Senate to consider and decide whether or not Brett Kavanaugh should be confirmed as a judge on the US Supreme Court exposed some of the glaring weaknesses in the American system of judicial appointments to that nation’s highest court. Remember that judges are appointed for life and can have a profound effect on many social issues of great importance. Issues such as the right of women to an abortion, or the rights of a foetus, the rights of gays and lesbians, and countless other important issues. No doubt America should put the best people on that court.

In criminal law there is an expression, ‘better to let 10 guilty criminals off than send 1 innocent person to prison.’ That is acceptable in a criminal court.  Is that the appropriate principle to other important decisions? Not always I would suggest. No one in his or her right mind would say, ‘Better to have 10 rapists as judges than decline one innocent candidate.’

The problem of course is what should the decision makers do when the evidence is not certain or all the facts are not in? That can be difficult. Did the American Senate get it right?

What are people to do when all the evidence is not in? In a criminal court it is clear. The court cannot convict unless it is proven beyond a reasonable doubt that the accused is guilty.  If the judge or jury decides the case is not certain, a verdict of not guilty is required. That is as it should be. But what about other circumstances? What about outside the criminal court?

I think environmental law has found a workable solution.  It is called the precautionary principle. This means that decision makers should act to prevent harm when it is within our power to do so, even when all the evidence is not in. For example, if someone proposes to install a petroleum pipeline that might or might not lead to environmental contamination should the pipeline be approved or not? This principle requires that the pipeline which might cause great harm, only be approved if the persons who wants it gives reasonable credible evidence that it is safe to do so.

If it is not certain whether a particular course of action will create harm or not, as for example when the existing scientific evidence is unclear or uncertain about whether it will lead to serious harm or not, the precautionary principle imposes an obligation on the proponent of the  course of action, such as a pipeline, to prove that it will not lead to harm until further evidence makes it clear that the harm can be averted. In other words, policy makers are required to protect the public when there is a reasonably plausible possibility that a particular action will cause harm.  The decision makers can and should act to do this even it is not certain that the action will lead to harm. These protections can only be relaxed when further sound evidence makes it clear that no harm will result. The onus of proof is on the proponent to establish a lack of harm. Not the other way around.I think the American Senate ought to have been guided by such thinking in the case of Judge Kavanaugh.

In the case of the Senate hearings both the complainant Dr. Christine Blasey Ford and the proposed judge, Kavanaugh made plausible cases in support of their position. Kavanaugh came on strong and made a forceful defence against the allegations. On the other hand, Ford was clearly credible too. She made some inconsistent statements about what happened 36 years ago, but it would have been suspicious if that were not the case. I would say it was not certain beyond a reasonable doubt who was right.

The Senate appointed Judge Kavanaugh on the basis, I believe, that Dr. Ford’s  allegations were not proven. I think the Senate put the onus of proof on the wrong person. It should have said, Kavanaugh must prove he was innocent on a balance of probabilities, not on beyond a reasonable doubt.

Ford’s testimony might not have led to a conviction in a criminal trial, but it certainly was enough to reject him as a judicial candidate for a lifetime position to the highest court in the land. The public should not be required to accept a candidate as tainted as Kavanaugh, even though he might be innocent, because the public should be protected from the immense harm he might inflict on the public as a result of his lifetime appointment unless he could first prove that he was worthy.

Judge Kavanaugh was right when he called the hearing a national disgrace but not for the reasons he said so. It is a disgrace when the weighing of judicial appointments becomes a pure partisan game on both sides. It is a disgrace when an alleged sexual assault victim becomes a pawn in a political game. It is not a disgrace when an unworthy candidate is rejected for high judicial office when on a balance of probabilities, even if not beyond a reasonable doubt,  it is clear that he is wholly unsuitable for that office.

I would put it this way: If you were on the board of your local school division would you hire Brett Kavanaugh to be a janitor for the school? Not me.

Establishment of Religion

Recently I posted about the establishment of religion clause in the US. We don’t have such a clause in our constitution but we do have a clause guaranteeing religious freedom, which has been interpreted to include freedom from religion.

I like the English philosophers who often went by the name of liberals.  Today, liberalism is a bad word in many circles—particularly in the United States. I find it very congenial. I am not talking about the Liberal party in Canada or the Democratic Party in the US. I will leave that for another day. I am talking about small “l” liberalism.

I think the philosophy of liberalism was started in England by John Locke, who lived mainly in the second half of the 17thcentury. That’s a long time ago, but I think its important. Locke’s ideas were borne in the crucible of English politics during this time. That history had important effects on liberalism. And it is important today, though too often forgotten.

The Reformation and the problem of religious minorities was central to Locke’s political philosophy because those were the burning issues (literally burning issues) of his times. By the 1680s there was clear political unrest in England. Until then this was not an issue all values were shared because everyone in Europe was a Roman Catholic. Until then the issue of minority rights did not arise for there were no minorities. After that political theorists had to figure out how can we live in a society together when we don’t all share the same values? We are still trying to solve that problem.

The religious wars of the 17thcentury were incredibly bloody and Locke and the liberals did not want to see them repeated. In the 21stcentury we should be no less vigilant.

2 years ago, Chris and I attended a lecture at the University of Manitoba by Professor Steve Lecce. I have often thought of what he said. He said, that the key question of modern and contemporary political theory is, according to Lecce, “How should we live together in society when we don’t all share the same values?

According to traditional liberals, the state is not an instrument for pursuing common goals, but rather an institution that allows each of us to pursue our own personal goals while living in society with those who have different objectives. Where values diverge, as they now inevitably do in any post Reformation society and in particular in modern societies that include immigrants from around the world, how can we live together in peace and harmony without resorting to might is right or without resorting to the ability of the majority to dominate? Liberals say that there are some things the majority or the powerful should not be able to do. Instead we will have a method of settling disputes fairly. The state in such circumstances has to be like a referee or umpire. That is why the state must remain neutral between religions for example. It should not assist one religious group to establish its religion over others.

This was very important in the Reformation when religious freedom was the critical issue of the time. It is still important. It is particularly important in places like Steinbach where religion is very important. The Reformation splintered the dominant religion and cleared the way for new problems that were irrelevant before then when everyone agreed.

Until the Reformation a common religion bound us all so that this was not an important issue. Religion until then was the social glue that kept us together. After the Reformation, religion became an explosive issue that could blast society apart. And it often did. It still often does that. Before the Reformation religion was the basis of societal trust.  After the Reformation religion became an instrument of distrust. We still live in this post-Reformation world.

There were 2 possible solutions to this problem of religion after the Reformation:

 

  • A religion can be imposed by force or power to achieve religious unity. This was tried with great vigor in the religious wars of the 17th The result was great misery and abject failure. John Locke developed his philosophy just after those wars which were burned into his memory. Unfortunately, now many of those memories are vague or forgotten.
  • The second possible solution is the radical idea proposed by liberals like John Locke–toleration. That had never been tried before. It was truly deeply revolutionary. It is important to remember this when modern liberals are often seen as dull and boring theoreticians. In the 18thcentury this idea was profoundly revolutionary. Many hated the idea of tolerance because they saw it as capitulation to evil.  Liberals said we had to accept differences.

 

Nowadays toleration, a value that was revolutionary in its day, and I would submit, is revolutionary today, can seem like very thin gruel compared to the spicy virtues reflected by much more aggressive and powerful advocates like ISIS, Boko Haram, Donald Trump, and their ilk. It can seem wishy-washy just like–well—liberals. The liberals stand for permitting others to have their say. This is much less sexy than threatening to ban them, or build a wall to keep them out, or kill them. However, in a world charged with the most vicious of religious hatreds like that of Europe in the 17thcentury or our current world in the 21stcentury, tolerance is not wishy-washy at all. After all the 17thand 20thcenturies were the two most violent centuries in the past 500 years according to Steven Pinker. [2]Tolerance is the most vital of all the virtues! Liberals should step to the plate with vigor and confidence. Liberals actually represent our best chance for civilization to endure.  At least so liberals believe.  At least so I believe.

In the 17thcentury there were those who feared the worst from this revolutionary new idea of tolerance.  Would this not lead to the destruction of public morality?  Personal morality should never be permitted to undermine public morality, it was widely believed. This in fact is the essence of Conservatism! It is stillthe essence of conservatism.

It is still vitally important in a community like Steinbach today as I write.         Recently, our little community has been challenged by a young Lesbian couple who wanted the schools in our area to teach about all families and not ignore the diverse kinds of families like theirs. They want respect. They do not demand acceptance, but they want to be recognized. Many in my community–the modern conservatives–believe sincerely that this can lead to the disintegration of the modern family and with it our cherished western society. The conservatives don’t want to tolerate the lesbians. They feel that this will lead inevitably to the disintegration of all that they hold dear. This is classic conservatism.

Liberals challenge this view. Liberals hold that we can each freely have our own personal opinions and morality without challenging the social order or value of society. Let people disagree. We can all get along provided each of us accepts limits. We must tolerate each other even when we believe others are wrong. This will not destroy society. In fact modern liberals, like Justin Trudeau, believe that the diversity of modern society will strengthennot weaken society.

That means that we must put reasonable limits on our religious values too. We can hold them personally as much as we want, as vigorously as we want, but we cannot impose those values on others. The social value of imposing religious values was rightly discredited after the religious wars of the 17th century. We don’t want to go back there. That is why we in Steinbach must accept same sex marriage as a permitted alternative life style that must be respected, even it is not accepted. This respect will not destroy society it will strengthen it. To live in society we must respect others even when we disagree with them. That is why traditional liberals say that no religion should be established by the state. Everyone should be absolutely free to choose whatever religion they want, including no religion at all. Then we might be able to live together even when we have fundamental disagreements. If we learn tolerance we have a chance of living together. If we don’t we stand no chance.

Many people on the religious right today seem quite willing to permit a religion to become established by the state, provided of course it is their religion. Mennonites at one made a similar principle at the heart of their own position about religion and politics. They knew from profound personal experience how an established religion, such as the Catholic religion in their case, could be used against them to try to beat down their rights to practice their own religion. Nowadays, too many of Mennonites have forgotten this important lesson as they try to impose their own religious views on others. This is what they have done in Steinbach.

A good friend of mine said I must be “even-handed”. I agree. He suggested I had not considered those who advocate imposing Sharia law on us here in the west. Actually I have never encountered that, but if it happened here I would denounce it just as strongly. Muslims too must learn the benefits of tolerance. All of us must.

Religious freedom to discriminate: Law Society of British Columbia and Trinity Western University and Brayden Volkenant

 

Many people in my community have become very excited about the case of Law Society of British Columbia and Trinity Western University (‘TWU’) and Brayden Volkenantwhich together with a similar case in Ontario went all the way to the Supreme Court of Canada (‘SCC’) for a decision about how religious freedom and the right to be free from discrimination worked together in Canada. It is always difficult for courts to reconcile 2 conflicting freedoms. In this case at issue was the right of the TWU community to religious freedom and the right of members of the LGBTQ community to be free from discrimination. Both are important rights protected by the Charter. Should one override the other or should one be bent in favor of the other?

To evangelical Christians in my community this was a crucial case. They felt their religious freedom was at stake. I heard that the Southland Church, the largest evangelical church in town, , held a fast and vigil the night before the decision was announced. Their prayers went unanswered.

TWU is an evangelical Christian postsecondary school that sought to open a law school that would require its students to sign a Covenant Agreement (‘Covenant’) that prohibits “sexual intimacy that violates the sacredness of marriage between a man and a woman.” That covenant prohibits conduct throughout the 3 years of law school even when students are off campus in the privacy of their own homes.

The Law Society of British Columbia (‘LSBC’) is the regulator of the legal profession in BC and implemented a resolution declaring TWU’s proposed law school was not an approved faculty of law because of its mandatory covenant. It felt that the covenant was discriminatory against the LGBTQ community and others. TWU and one of its students made an application to court to compel LSBC to approve its law school arguing that its failure to do so violated its religious rights protected by s. 2(a) of the Canadian Charter of Rights and Freedoms (‘Charter’). The SCC upheld the decision of the LSBC and hence the proposed law school is notapproved in BC. Other provinces may follow the same course of action.

Was the SCC right or are the protesters at Southland right? The reasons of the court were long and complicated. I would recommend that anyone interested in this subject read those reasons in their entirety. It is difficult to fairly précis the decisions. All in all 7 SCC judges agreed with LSBC and 2 dissented agreeing with TWU.

The nub of the matter is that law school seats are a treasured benefit. Hundreds of people, across Canada apply for each seat. TWU would have had 60 seats available for its graduates and it was clear to all that TWU’s Covenant would have effectively closed the door to the vast majority of LGBTQ students. Those who would have been able to sign the Covenant would have had 60 more law school seats per year to apply for than LGBTQ students. In short LGBTQ students would have fewer opportunities relative to others. Should that have been allowed? The majority of the SCC said “no”. The SCC held that this would undermine true equality of access to legal education and by extension the legal profession. According to the majority of the SCC “substantive equality demands more than just the availability of options and opportunities–it prevents the violation of essential human dignity and freedom” and “eliminates any possibility of a person being treated in substance as ‘less worthy’ than others.”

TWU admitted that eliminating the mandatory Covenant, which is what LSBC required, would not prevent any believing member of their community from adhering to their beliefs. Rather it said removing the Covenant was an interference with their members’ beliefs that they must be in an institution with others who shared or respected their practices on sexual relations.

The majority of the 7 judges (5 of them) disagreed with TWU holding that the impact of the decision of the LSBC was “of minor significance” to the religious freedom of the TWU community.  The Chief Justice McLachlin and one other judge  admitted it was of morethan minor significance. butnonethelessagreed that the Covenant could not lawfully be required. I find her judgment the most interesting.

First, because TWU is a private institution, the Charter does not apply to it and it is allowed to discriminate against the LGBTQ community (even though I would argue it ought not to do that because it is not right to do so). But the TWU insistence on the mandatory Covenant is a discriminatory practice because it imposes a burden on LGBTQ people solely on the basis of their sexual orientation. Married heterosexual law students can have sexual relations, while married LGBTQ students may not! The Covenant “singles out LGBTQ students” (and others I would add) “as less worthy of respect and dignity than heterosexual people and reinforces negative stereotypes against them,” the Chief Justice said. Those LGBTQ students who insist on equal treatment will have less access to law school and hence the practice of law than heterosexual students. Heterosexual students can choose from all law schools without discrimination, where one law school would only be available to LGBTQ students willing to endure discrimination.  This, the court determined, is a harmcaused by the exercise of religious freedom by TWU.

The LSBC is duty bound to protect the public interest and preserve and protect the rights and freedoms of everyone, including the LGBTQ people. The religious freedom of TWU stops at the point where it harms others and infringes on their rights. The LSBC was within its rights to refuse to condone practices that treat certain groups as less worthy than others. I would respectfully suggest that members of the Southland Church Community should also refuse to condone such practices on the part of TWU.

The Chief Justice admitted that this decision has negative impacts on the religious freedom of the TWU community and these were of more than minor significance. Yet she accepted the position of the LSBC that it could not condone a practice that discriminates by imposing burdens on the LGBTQ community on the basis of sexual orientation, with negative consequences for the LGBTQ community, diversity, and enhancement of equality in the legal profession. The Law Society was faced with an either-or decision  on which compromise was impossible–either allow the mandatory Covenant in TWU’s proposal to stand, and thereby condone unequal treatment of LGBTQ people, or deny accreditation and limit TWU’s religious practices . In the end, she said, “after much struggle the LSBC concluded that the imperative of refusing to condone discrimination and unequal treatment on the basis of sexual orientation outweighed TWU’s claims to freedom of religion…The LSBC cannot abide by its duty to combat discrimination and accredit TWU at the same time.”

While I agree completely with the decision of the Chief Justice of Canada and the other judge who agreed with her, I want to go a step farther. I want to go beyond the narrow confines of the law and the Canadian Charter. I think it is time–no it is high time–for the evangelical religious community to take an honest look at itself and its traditional practices. It is time for it to stop using religious freedom as a shield to allow it to infringe on the rights of others. That is not the purpose of religious freedom. It is time for the evangelical community to stop causing harm to others in the name of religious freedom. That is what it tried to do in this case and d it has done so over and over again in the name of religious freedom on the basis of dubious interpretations of ancient texts. The evangelical community can and should to better.