There is a great irony in the controversy concerning allowing a law
school at Trinity Western University (TWU) with a contract enjoining students
and faculty to forbear from, inter alia, sexual intimacy outside
monogamous opposite sex marriage, in consideration
for goods and services rendered by
the University. Namely, that the case of Syndicat Northcrest v Amselem [2004], which proponents of the law
school often proffer as a strong shield for freedom of religion, may act as a
sword against them, when the case is construed as an innovation in contract
law. An implied premise of the majority ratio
in Amselem is that fundamental
rights cannot be entirely extinguished by contract; for a party to a contract
(especially in circumstances of unequal bargaining power) necessarily lacks the
requisite knowledge concerning her (mutable) life-plans effecting the consensus ad idem between the promisor
and promisee necessary to waive these rights, if it is even moral to do so.
Consequently, a contract that purports to abridge freedom of religion,
particularly without express declaration and precise circumscription, must be
unenforceable. The same principled arguments hold true against the curtailment of
sexual orientation protection and expression at TWU. Granted, the Québec Charter
applies to private transactions, whereas the Canadian Charter may or may not apply to private law
school accreditation. In theoretical terms, however, one cannot have one part
of Amselem without the other.
I follow scholars such as Lon L. Fuller, Ronald
Dworkin, T.R.S. Allen and David Dyzenhaus in thinking that the enterprise of
constitutional law is one of humankind’s highest arts — to use the phrase of eminent
pre-charter scholar, F. R.W. Scott — in which we sculpt present realities , as
far as possible, consistent with an integral search for, and application of,
liberal Grundnorms. The purpose of my
talk here today is to demonstrate the following: first, if correctly
applied, in conjunction with the principal that there is no hierarchy of
rights, within the context of a law school, Amselem ought to be
determinative in the TWU matter; second, considering this argument would add
greater intellectual rigour to the debate. With the greatest of respect,
therefore, the Ontario Divisional Court also erred in the case of Ontario (Human
Rights Commission) v Christian Horizons [2010], both in its application of
contract theory and interpretation of the exemption given to religious
organizations. The court interpreted section 24(sub 1) (which is now 18) of The Ontario Human
Rights Code widely, following the SCC's direction in cases such as Caldwell
v Stuart [1984] and Brassard (Town) v Québec (Commission des
droits de la personne) [1988], but the reasoning in Amselem, and
the Bedford criteria for overruling precedent, ought to narrow this
interpretation. Caldwell can also be distinguished because this does not involve the indoctrination of children. This also means, albeit for slightly different reasons, I must
respectfully disagree with the British Columbia Court of Appeal (BCA) and side
with the Ontario Court of Appeal. The BCA also erred in its interpretation of
contract doctrine and its impoverished view of substantive equality.It is also imperative to note that section 3 of the hunter human rights code protects against discrimination in matters of contractual capacity; for I believe that this should extend to matters of waiver. Peter W Hogg notes that the Supreme Court does not have a consistent position on contractual waiver (ch. 37 p. 52). While I agree with the dissent of Wilson J. In McKinney v. University of Guelph (1990), that section 15 interests ought not to be subject to contractual waiver (at p. 447-8), I believe the current case is distinguishable from the prevailing ratio of McKinney because the community covenant does not confer any benefit, unlike those flowing from mandatory retirement. (at p. 239, per Laforest; at p, 277, per Cory J. concurring).I also note that McIntyre J. Found age discrimination contrary to Manitoban, public policy, in the case of Craton v. Winnipeg School Division No. 1 (at p. 154), even though mandato ry retirement was part of a contract because there was no benefit
Mr. Amselem and the other
applicants were orthodox Jews who wished to celebrate the festival of Sukkot.
Orthodox Jews are required to “dwell,” that is, take all their meals in, a tent
-like structure that remains open to the heavens. One of the requirements of
such dwelling is that it be done “joyously”. For some orthodox Jews, this means
that the structure in question must be near their primary residence, especially
on Sabbath days: it was otherwise very inconvenient. . Mr. Amselem rejected the offer of a communal sukkah;
for he believed that the only way to satisfy his religious obligations was to
have a structure on his balcony, thereby facilitating solemnity, joy, and ease
of access (at paras 14-17). The problem for Mr.
Amselem and his co-appellants was that they had chosen to live in a posh
condominium development with draconian bylaws, particularly in relation to the
external appearance of the building. The co-owners had a public image they
wished to present to the world and a way of living that would preserve that
image (at para 6-7). Further, their right to proprietary integrity and
development was and still is enshrined in the Québec charter alongside the
guarantee of freedom of religion (at para 18). They were so concerned about
this, in fact, that they hired their own rabbinical expert and sought the
intervention of the Canadian Jewish Congress, both of which sided with them (as
did the courts below), in opposition to Mr. Amselem’s evidence (at paras
133-6, Bastarache J dissenting).
Before considering
the majority judgement, I would like to review the dissent of Justice Binnie.
He takes a very traditional view of contract that resembles the one adopted by proponents
of Trinity Western’s law school program. Even though Justice Binnie
acknowledges that the Québec charter, unlike the Charter of Rights, applies
to private legal relationships and, thereby, can affect the construction of
contracts, he emphasizes the fact that the appellants signed contracts. They,
therefore, freely chose to abrogate their right to religious freedom, in a
manner similar to the way that hypothetical LGBTIQ+ present and future students
at Trinity are said to abrogate their rights by signing the community covenant.
What mattered for Justice Binnie was individual choice. He assumes that
restrictions on religious expression, even if not trivial or insubstantial, and
even if they have the effect of extinguishing the right entirely, is something
that an individual or corporate entity can require as part of what is
effectively (for the prospective tenant) a contract with quasi-adhesive status
in which the bargaining power is very limited. Mr. Amselem and his co-appellants
can simply reside elsewhere if they do not like the arrangement. They freely
signed an agreement; they ought to have read it; and now they are bound by its
terms (at paras 184-6). Justice Binnie’s reasons, as so often with his
perceptive judgements and dissents, have a certain matter-of-fact appeal. He
did not write the majority judgement, however: Stare decisis enjoins us
to be bound by the majority judgement.
It is difficult to discern a single clear ratio in the judgement of Justice Iacobucci,
despite the merits of his opinion. Yet while expressly not deciding the vexed
question of whether one can, in fact, waive a constitutional right such as
freedom of religion, he does clarify that such a waiver, if it is morally
permissible at all, must meet four criteria. First, the waiver of a fundamental
right would have to be sought for a pressing countervailing interest: this is
implicit from his finding that the right to live in an environment free from
subjectively ugly structures is not one of these interests (At paras 60-4, 82-86). Second, if such limitations are to exist, they must
be proportionate to the objectives sought by the contract and infringe the
waived right as little as possible, proportionate to those objectives. Third,
there must be some ability on the part of the offeree to negotiate the terms of
such waiver, thereby making quasi-adhesive contracts suspect because of necessary
power differentials. Fourth, and this is the most important implication, one cannot validly waive rights protection
in the present to apply in perpetuity for future circumstances (at paras
92-100).
This is so for two reasons. First, there is the more
obvious point that all rights in the Charter,
those found in human rights codes, and our common law tradition, derive from
our aspiration to create a unified moral personality. One is not human in
addition to having a given religion or sexual orientation. Instead, one
expresses humanity in and through those traits. Second, and this is perhaps the
more controversial point, we cannot perpetually alienate rights, especially by
contract, because human moral personality is, and ought to be allowed to be,
subject to change and development. In a very real sense, this alienation is a
species of objectification, on the one hand, and involuntary servitude, on the
other. Thus, a principled theoretical implication of Justice Iacobucci’s
judgement is the following: because fundamental rights are crucially important
yet subject to change. They can never be entirely extinguished by contract.
Such extinguishment would require an agent to have knowledge of herself and
limit her future prospects in a way that is neither logically possible nor
desirable. In philosophical terms, the theory of contract receives its moral
force from the ideas of free volition and consensus
ad idem. The absence of these vitiate contractual obligations. These
agreements are pacta non sunt servanda.
We waive rights
frequently in the context of criminal proceedings and commercial transactions.
But this is different. First, when an accused person waves his right to counsel
— as allowed by the 1999 Supreme Court judgement of Mills — he does so for that specific
instant; he does not waive his right for five times or four years. Second,
within the corporate context, it is briefly helpful to consider noncompete
clauses as a useful analogy. Though they can impose time restrictions, much
like the community covenant, they are usually most likely to be enforced when
they are reasonable and tailored to the objectives. Assuming , arguendo, that
noncompete clauses match the level of gravity we ought to assign to sexual
orientation waiver, I would be more inclined to suggest the law society of
upper Canada ought to have approved Trinity Western’s proposal if the clause
had read — and, as I understand it, this is more reflective of common practice
in any case — “respecting community personal beliefs, sensitivities, and desire to live a
chaste life, students shall refrain from
unmarried (defined by our interpretation of the Bible) heterosexual or homosexual sexual activity on
campus and, in the event that they do so off-campus, shall not advertise,
communicate, or advocate doing so to
their fellows in a manner that is disruptive of community values”. This
version, though onerous and, perhaps, also morally problematic, would not have
completely extinguished rights, while accomplishing community objectives. I
note in passing that the biblical basis of these condemnations do not help the
contract. Incorporating Romans chapter 1 means that students subscribed to the
opinion that homoerotic behaviour is dishonourable, effeminate, and deserving
of capital punishment. Moreover, the SCC’s recent, albeit contentious and
highly divided ruling in Douez v.
Facebook Inc. (2017) sheds further doubt on the status of qausi-adhesive
contracts in situations of unequal bargaining power.
One of the
reasons we ought to protect freedom of religion from complete contractual
waiver is that religious affiliation can at least in some lives, my own being
one of them, change frequently and profoundly. It is repugnant to exempt an
institution from disability non-discrimination provisions simply because an
applicant was able-bodied when they hired her. Persons ought to be free to
become disabled or change religions without fear of losing employment. It is
not because persons with disabilities cannot change their conditions that we
protect them from vocational or educational discrimination; it is because
discrimination based on ability stereotypes unrelated to employment is per se morally evil.
I am gay, yet I have
never seen the attraction or ethical viability of “the born that way” argument,
but, through training in philosophy, I have come to see homoerotic behaviour
and orientation permissible on utilitarian and, more important, for me at
least, Kantian grounds, as well as a positive social good, on par with the
benefits of religious expression. I believe that people ought to be able to
choose to be queer, as well as manifest the various identities under that label
through practices, in the same way that individuals have the right to choose
whether to be Baha’i, Baptist, and/or Buddhist at any point in their life as a
right flowing from moral personality. Renouncing this choice represents an
ignominious sacrifice of one’s dignity as a moral agent. Often this case
precedes under the assumption that an imagined fully formed, let us say
lesbian, student knows her identity and so can purportedly freely choose to go
somewhere else. We have seen from Justice Iacobucci’s judgement that that is
inadequate.
Even if it were
sufficient, however, it does not solve the moral dilemma of what to do with
someone who changes sexual orientation later in life (in this example, law
school) and the harm done by the forced shaping of someone’s sexual orientation
through oppressive institutional contexts. Justice Iacobucci recognized the
mutability of rights by the scope and flexibility with which he constructed the
“sincere belief” test. Remember that Mr. Amselem was not required to demonstrate
that he had this belief for a long time. Justice Iacobucci found that his
erstwhile contract signing self was not obliged by his previous religious
convictions when he purchased his condominium. What mattered was Amselem’s present state and the present
development of his moral personality (at para 42). That development had to be
curtailed by the rights of the other property owners, insofar as the structures
had to be removed after nine days, were required to be unobstructive, and were
ordered to conform to the aesthetics of the building as far as possible (at
para 88).
While not
denying its religious character, the community covenant is, in many respects,
like the co-ownership agreement. It asks individuals to refrain from (sexually)
expressive activity to maintain a certain way of life, collective appearance
(within and outside the bounds of the property), increasing its marketability
to perspective members. It is predicated on a very exclusive, some would say
elite, notion of collective identity, designed to create a boundary between the
ingroup and outgroup. It offers students a nonnegotiable contract while wanting
to withhold access to scarce social resources. Finally, both cases deal with
the marginalization and concomitant deference that is properly owed to two
beleaguered and insular minorities, queer and Jewish persons, in environments
historically associated with discrimination — upper-class Montréal, on the one
hand, and Christian educational institutions, on the other. Even if, as appears
to be the case, this particular provision in the community covenant is rarely
enforced, prospective students would be learning contracts in a legal
environment where principles of contract mean very little. This is counterintuitive
at best.
The University itself seems to recognize this, as the
Ontario Court of Appeal pointed out; for it does not bar students of other
religions or indeed no religion. Were a restrictive admissions policy adopted,
it would call into question the moral equality of non-Christians, but it would
arguably be more in keeping with the University’s mandate of promoting both
orthopraxis and orthodoxy. The only reasonable inferences to be drawn are that
— LGBTIQ+ persons are, first, more able to discard their identity than other
groups, second, somehow more toxic on communal Christian living than the
presence of nonbelievers and, third, less worthy of Charter protection than “deserving” equity-seeking-groups.
Trinity Western is a religious institution, and so its
commitments are more serious than the aesthetics of a condominium building. Yet
the sacrifices it asks of its students are much greater as well. Mr. Amselem was only
prohibited from his particular interpretation of what a religious practice
required in a specific instant. Queer persons at Trinity Western are prohibited
from sexual practice altogether. Mr. Amselem and his co-appellants were
free to express their religion elsewhere while retaining co-ownership. Queer
persons at Trinity cannot officially express their sexuality anywhere, without
fear of losing their place. It is most unfortunate that the court has retreated
from the dignitary equality-based framework enunciated in the 1999 Law decision.
However much human dignity may be impractical to operationalize from a litigation
and jurisprudential perspective, the dignity of an integrated moral personality
ought to remain our focus when considering human rights. Because the virtual
extinguishment of sexual freedom, and, therewith, a key component of integrated
moral personality, is accomplished by the community covenant, Trinity Western
is not an appropriate place for the teaching of contracts or constitutional
law. Lawyers take an oath to uphold the rights of every person. It too is a
solemn covenant between them, their colleagues, and the public. And that
contract ought to trump in this case. To the extent that it still applies, my
submission is that Amselem effectively overruled the relevant dicta from
Trinity Western v British Columbia College of Teachers.
After a long day of negotiating our neoliberal
healthcare system as a person with a severe
disability, who is often ostracized from multiple parts of society at once, and
trying to complete a PhD, on the Trinity Western law society submissions, I
usually watch Supreme Court webcasts. I am likely the only one. Yet it makes me
so happy because the law is the one venue
in which I am at least theoretically
equal. This idea, at times more an aspiration than a reality, is what gives me
the strength to do what I do,. In the spirit of John Dunn’s poem “No Man Is an Island,” when one
person is diminished, we all are; when one right is abrogated unjustly, all
rights are abrogated unjustly.
Bibliography
Legislation
Human Rights Code, RSO 1990, c H.19,
Accessed 2018-03-27
Jurisprudence
Canada (Attorney General) v.
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Caldwell v.
Stuart, [1984] 2 S.C.R. 603,
[1984] S.C.J. No. 62,
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Mckinney v. University of Guelph, [1990] 3 SCR 229, 76
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Law v. Canada (Minister of Employment and
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Ontario (Human
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Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551 [Amselem].
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Trinity Western University v British Columbia
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131 OR (3d) 113
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