Trinity Western University’s Community Covenant and Contemporary Contracts

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

Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279, [1988] S.C.J. No. 79, 53

Canada (Attorney General) v. Bedford, [2013] S.C.C. 72, para 158, [2013] 3 S.C.R. 110.

Caldwell v. Stuart, [1984] 2 S.C.R. 603, [1984] S.C.J. No. 62,

Douez v. Facebook, Inc., 2017 SCC 33, [2017] 1 S.C.R. 751.
Mckinney v. University of Guelph, [1990] 3 SCR 229, 76 DLR (4th) 545.

Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497

Ontario (Human Rights Commission) v Christian Horizons 2010 ONSC 2105. 

Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551 [Amselem].

R. v. Mills, [1999] 3 S.C.R. 668

Trinity Western University v British Columbia College of Teachers, 2001 SCC 31, [2001] 1 SCR 772

Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423, 405 DLR (4th) 16.

Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518,

131 OR (3d) 113

Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1. S.C.R. 396

Secondary Literature Consulted

Allan, T.R.S., Constitutional Justice: A Liberal Theory of the Rule of Law. Oxford: Oxford

University Press, 2001.

Martin, Dale B. “Heterosexism and the Interpretation of Romans 1:18-32.” In The Boswell Thesis:

Essays on Christianity, Homosexuality, and Social Tolerance, edited by Matthew Kuefler. Chicago:

University of Chicago press, 2006. 133-140.

McCamus, John, The Law of Contracts. 2nd ed. Toronto: Irwin Law, 2015.

Dworkin, Ronald.  Taking Rights Seriously. Cambridge: Mass.: Harvard University Press, 1978.

Dyzenhaus, David the Unity of Public Law. Oxford: Hart, 2004.

Peter W Hogg, Constitutional Law of Canada: Volume II. Fifth edition: Looseleaf (supplemented [2015]). Toronto: Carswell, 2007.

Scott, Frank R. Essays on The Constitution: Aspects of Canadian Law and Politics, University of Toronto Press, 1977,

Sullivan, Ruth. Sullivan on the Construction of Statutes, Sixth Edition Markham: ON: Lexis-Nexis, 2014.