In the classic Australian film comedy "The Castle", a man fights to keep his house from being expropriated for an airport expansion.
His hapless lawyer, having no idea what argument to make to the court, alleges a breach of the Australian Constitution. What section of the Constitution has been breached, the court asks. The lawyer has nothing. "There is no one section," he haltingly responds, "It's just the vibe of the thing." For a generation of lawyers it became a running joke used to ridicule one another's hopeless arguments.
To the Supreme Court of Canada, it's not a joke but a technique. On June 15, the court ended Trinity Western University's quest to open a law school. The university had challenged the refusal of the law societies of B.C. and Ontario to approve the school. The law societies did not question the quality of the legal education to be delivered but objected to Trinity's "community covenant," which requires its students and faculty to abstain from "sexual intimacy that violates the sacredness of marriage between a man and a woman." A majority of the court found that the law societies were entitled to violate Trinity's religious freedom in the name of "Charter values." While freedom of religion is guaranteed as a fundamental freedom in section 2(a) of the Charter of Rights and Freedoms, Charter values are found nowhere in the text. They are, yes, "just the vibe of the thing," used by the Court to trump actual Charter rights and remake the Constitution.
Trinity's covenant, the majority said, imposed inequitable barriers on entry, especially for LGBTQ students, and held that the actions of the law societies reflected a "proportionate balancing" of the Charter protections at play. It may sound fair and reasonable but it is actually profoundly twisted. The case did not feature competing Charter protections. Trinity's religious freedoms were not pitted against the equality rights of LGBTQ persons because no such rights existed. The Charter does not apply against anyone but the state. As a private religious institution, Trinity was not subject to the Charter or for that matter to the B.C. Human Rights Code. Trinity was the only party with Charter rights, enforceable against the law societies as agencies of the state. Calling the covenant an "inequitable barrier" is disingenuous. Religious communities consist of private persons gathering together and agreeing on a code to which they choose to adhere. They impose those standards on no one but themselves. No one is forced to join them and no one has the right to go to their law school, which is part of a private religious institution. There is nothing to "balance." Until, of course, the court invokes Charter values. You know, the vibe of the thing.
And what, pray tell, are the values of the Charter? They are not, as one might expect, the values reflected in the rights and freedoms that the Charter actually lists. If religious freedom is a fundamental freedom, is the value of religious freedom not a Charter value? The answer, apparently, is no. Turns out Charter values aren't the vibe of the actual thing at all, but a competing set of moral judgments that exists in the Court's imagination. The Charter was conceived and drafted as a roster of individual negative rights that protected against interference from an overbearing state. Charter values, as articulated by the court, are collectivist values of progressives: (substantive) equality, (social) justice and (group) dignity. Charter values are decidedly not the individual liberty values of classical liberals or the traditionalist virtues of conservatives.
"Charter values like 'equality,' 'justice,' and 'dignity' become mere rhetorical devices by which courts can give priority to particular moral judgments, under the guise of undefined 'values,' over other values and over Charter rights themselves."
The brilliant dissenting judgment of Justices Brown and Côté calls a spade a spade: "Charter values like 'equality,' 'justice,' and 'dignity' become mere rhetorical devices by which courts can give priority to particular moral judgments, under the guise of undefined 'values,' over other values and over Charter rights themselves."
They explain that the majority's approach "turns the protective shield of the Charter into a sword by effectively imposing Charter obligations on private actors." The majority's invocation of Charter values gives licence to the law societies to run roughshod over Charter rights in the name of the public interest, which is code for the progressive ideals to which all must now comport.
For years, the Supreme Court has insisted that the Canadian Constitution is a "living tree" that may be adapted to changing social circumstances. Using Charter values, the court has taken the project to a new level. The Trinity Western case is the most recent Supreme Court decision to slowly but surely transform the Charter from a roster of liberty rights to a regime of undefined, collectivist values. The court is doing so on its own initiative, without an amending formula, without legislative direction and without a vote from the people.
It is nothing less than a slow motion constitutional coup. And that's no joke.
Bruce Pardy, "Slow-motion coup." National Post (June 30, 2018).
Reprinted by permission of the National Post.
Bruce Pardy is Professor of Law at Queen's University. He has written extensively on environmental governance, ecosystem management, climate change, water policy and civil liability.Copyright © 2018 National Post
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