BCCLA Factum: Trinity Western University in the Supreme Court of Canada

FACTUM OF THE INTERVENER
THE B.C. CIVIL LIBERTIES ASSOCIATION

INTRODUCTION

1. The main issue in this case is whether the Appellant can demonstrably justify an infringement of the Respondents' fundamental freedoms.

2. The Appellant, the B.C. College of Teachers (the "BCCT") argues that it is not in the "public interest" to certify Trinity Western University's ("TWU") teacher education program because TWU's Code of Conduct discriminates on the basis of sexual orientation. The Respondents assert that denying certification of their program, infringes their right to be free from religious discrimination and their freedoms of conscience, religion, association and expression.

3. It is respectfully submitted that the Appellant erred when it determined that the TWU was guilty of discrimination, because the Appellant failed to consider the Respondents' fundamental freedoms of conscience, religion and association. With respect, the error in the argument of the Appellant was the assumption that equality on the basis of sexual orientation was the only value which was engaged by TWU's application for certification of its teacher education program. It was not. The values inherent in the Respondents' fundamental freedoms of conscience, religion and association were also engaged. If these competing values cannot be reconciled then the Court must determine on the facts and law, in each particular case, which rights and freedoms will take precedence. Where the State seeks to justify an infringement of a fundamental freedom, it must meet the test under s. 1 of the Charter. On the facts in this case, it is respectfully submitted that the Appellant's infringement of the Respondents' freedoms cannot be demonstrably justified.

4. This Intervener, the British Columbia Civil Liberties Association (the "BCCLA") will make submissions on the following issues: (a) whether TWU's Code of Conduct unjustifiably discriminates on the basis of sexual orientation, contrary to law; (b) whether there is any evidence that TWU should be denied certification because its graduates may poison the classroom environment; and, (c) whether the Appellant's refusal to certify TWU's program was an unjustified infringement upon the Respondents' freedoms of religion and association.

THE TWU CODE OF CONDUCT DOES NOT VIOLATE HUMAN RIGHTS LEGISLATION AND THE CHARTER

5. It is important to keep in mind that there are basically two reasons why the Appellant says the TWU program should not be certified, due to the TWU Code of Conduct. The Appellant has blended these two reasons together in its argument, but they are really separate. First, the Appellant refused to certify TWU's program because, it says, the TWU Code of Conduct discriminates on the basis of sexual orientation and therefore it was not in the public interest to certify the program: A.B. p. 323. Second, the Appellant said that it refused to certify the program because of the concern that graduates of TWU, who had been adherents to the Code of Conduct and the TWU "world view", may have a detrimental effect on the learning environment in the classroom, once they graduate: A.B. p. 326.

6. This Intervener will first deal with the Appellant's concern that TWU was following discriminatory practices.

7. This Intervener concedes that, in its effect, the Code of Conduct is discriminatory, but that does not end the matter.

8. Both the Appellant and the Respondents have agreed that TWU is not subject to British Columbia human rights legislation. The BCCLA respectfully disagrees with both of the parties. It is the position of the BCCLA that the British Columbia Human Rights Code clearly does apply to TWU.

9. The Appellant argues that it may refuse to certify the TWU program because discrimination is wrong and "there is evidence of discriminatory practices" by TWU: Appellant's factum, pp. 12 - 13, 22. With respect, the Appellant is arguing that once TWU has been found guilty of discrimination, that is the end of the matter. This is simply not the case. The British Columbia Human Rights Code provides certain "defences" to a charge of discrimination. Not all discrimination is unlawful. For example, only discrimination which is without "bona fide and reasonable justification" violates s. 8 of the British Columbia Human Rights Code. Further, non-profit religious and educational institutions may grant a preference to members of an identifiable group without contravening the Code: s. 41 (formerly s. 19).

10. In addition, while the Charter does not apply to TWU, the Appellant argues that the law prohibiting discrimination is, in effect, codified in s. 15 of the Charter: Appellant's factum, para. 51. While this is true, the Appellant is ignoring the fact that under the Charter, discrimination which may be demonstrably justified in a free and democratic society, is permitted under s. 1.

11. What the Appellants are really saying is that, in their view, to the extent that the law provides TWU with "defences" to a charge of discrimination, the law is wrong. The Council did not issue detailed reasons for its decision but the reasons it did issue demonstrate that it applied a very simple analysis to the problem before it. The Council said it was contrary to the public interest to approve the TWU program because TWU "...appears to follow discriminatory practices that public institutions are, by law, not allowed to follow": A.B. pp. 291, 323. In other words, the Council realized that TWU was, unlike a public institution, entitled to raise religious freedom and other rights and freedoms as defences to a charge of discrimination. The Council evidently did not like this state of the law so it chose to ignore those defences. It is not open to the Appellant, however, to apply part of the law and ignore the rest.

12. Section 41 of the British Columbia Human Rights Code is a recognition by the legislature that some discrimination by religious institutions should be tolerated in British Columbia, in order to protect their freedom to associate: Caldwell v. Stuart [1985] 1 W.W.R. 620, at. 641. Obviously, the very nature of a religious educational institution is to provide services to an identifiable group. This may either expressly or impliedly exclude others who do not belong to that group. This sort of discrimination is permissible under the Code.

13. Had the Council referred to the jurisprudence under the British Columbia Human Rights Code, it would have undoubtedly reviewed this Court's decision in Caldwell v. Stuart, supra, where it was found that it was permissible that a Catholic school dismissed a teacher from her employment for failing to follow Catholic dogma. (see also, R. v. Black and Metropolitan Separate School Board (1988), 52 D.L.R. (4th) 736 (Ont. C.A.) and Newfoundland Teachers Association and Walsh v. The Queen (1988), 39 C.R.R. 188 (Nfld. C.A.)). In doing so, this Court considered s. 41 (then s. 22) of the British Columbia Human Rights Code and stated, at p. 640:

To begin with it must be recognized that we are here facing a situation where there is a clear conflict between two sound legal positions. There is an assertion by each party of a clear legal right and the two rights, if each is to be accepted with no modification or limitation, are incompatible.... It seems evident to me that the legislature of British Columbia, recognizing the historically acquired position of the denominational school and the desirability of preserving it, in enacting a Human Rights Code which goes far to eliminate differences and distinctions in society, included s. 22 [now s. 41] as a protection for the denominational school or other institution in like case.

14. The Appellant concedes, and this Intervener agrees, that the Council was not applying the Human Rights Code and the Charter when considering TWU's application: Appellant's factum, para. 63. Indeed, there was no complaint of discrimination before the Council. The Appellant argues, and again this Intervener agrees, that it may consider the principles contained in the Charter and the Human Rights Code to guide it in its assessment of TWU's application: Appellant's factum, para. 63.

15. The problem, however, is that assuming it was within the Council's jurisdiction to consider whether TWU was contravening the principles enshrined in the B.C. Human Rights Code or the Charter, in order to determine if it was in the public interest to certify their program, the Council must, in doing so, consider those laws in their entirety. They cannot pick and choose which sections of the Code and the Charter they wish to consider. They cannot purport to consider the Code and Charter and ignore the jurisprudence under both. Had they considered the Code and the Charter in their entirety and the jurisprudence under each, they would have concluded that TWU's Code of Conduct does not contravene the Code and Charter principles.

16. With the greatest of respect, the Council of the BCCT has, in effect, either concluded that the value of equality on the basis of sexual orientation was the only value that was at issue before them, or that the value of equality should somehow "trump" the Respondents' freedoms of conscience, religion and association. The British Columbia Legislature, however, has determined through s. 41 of the Human Rights Code that the Respondents' freedoms of religion and association are deserving of protection and it is not open to the Appellant to disregard or overrule this protection.

17. The Appellant is a statutory tribunal which is a branch of the State. It was not open to the Appellant to re-write human rights law. The decision of the Council was wrong. The TWU Code of Conduct does not violate the B.C. Human Rights Code and is not contrary to the principles set out in the Charter. Even if one accepts that the Code of Conduct is discriminatory, it is discrimination which is permitted or justified by the law, by reason of the protections and freedoms accorded to the Respondents.

18. Thus, there is no justification for concluding that certifying TWU's teacher education program is not in the public interest.

THERE IS NO EVIDENCE THAT TWU GRADUATES ARE UNFIT TO TEACH

17. The Council's other stated reason for refusing to certify TWU's teacher education program was because of a concern that graduates of TWU may have a detrimental effect on the classroom environment.

18. As a "cure" to prevent this alleged effect from occurring, the Council of the BCCT argues that it is important that the students in TWU's teacher education program attend Simon Fraser University for one year in order to gain exposure to secular or Charter values.

19. Students have been graduating from TWU, taking 4 of their 5 year program there, for many years. No evidence was placed before the Council of the BCCT nor the Court below, to suggest that any graduates of TWU have discriminated against homosexual persons in the public school classroom environment, or failed to provide a welcoming or supportive environment to homosexual persons in the school system. The Appellant argues that this proves the present system is working. The final "de-programming" year at Simon Fraser University, however, has actually been as spent as a student practicum, in the classroom environment. The same would be done at TWU if certification was granted: A.B. p. 33, 467, 499 - 500.

20. This Intervener takes the position that, while the Appellant had the authority and jurisdiction to consider whether graduates of TWU may not be fit to teach in a school classroom environment, there was simply no evidence in this case to support the view that they are unfit. It is noteworthy that the Council ignored the recommendations of its own accreditation committee, who had also considered the TWU Code of Conduct and world view: A.B. pp. 197, 211-216, 263-264, 484-5.

21. This Court in Ross v. New Brunswick School District No. 15 [1996] 25 C.H.R.R. 175, dealt with the case of a dismissal of a teacher on the basis of his racist comments and expressions made outside of the classroom. At p. 193 the Court stated:

I do not wish to be understood as advocating an approach that subjects the entire lives of teachers to inordinate scrutiny on the basis of more onerous moral standards of behaviour. This could lead to a substantial invasion of the privacy rights and fundamental freedoms of teachers. However, where a "poisoned" environment within the school system is traceable to the off-duty conduct of a teacher that is likely to produce a corresponding loss of confidence in the teacher and the system as a whole, then the off-duty conduct of the teacher is relevant.

22. On this issue, this Intervener adopts and repeats the Reasons for Judgment of Mr. Justice Goldie of the British Columbia Court of Appeal, at paragraphs 109 - 112 (A.B. pp. 499 - 500). Indeed, the only evidence before the Council on this issue was from the Respondent, TWU, rebutting the assertion that their teachers would poison the classroom environment: A.B. pp. 301, 302, 305, and 308. On the other hand, the Appellant's refusal to certify TWU on the basis of the Code of Conduct is, it is respectfully submitted, a substantial and unnecessary infringement of the fundamental freedoms of the Respondent, TWU and the students in its teacher education program.

THE DECISION OF THE COUNCIL INFRINGES THE RESPONDENTS' FREEDOM OF RELIGION AND ASSOCIATION

24. This Court, in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at 336-7 described freedom of religion as follows:

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct... The essence of a the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.

Freedom can primarily be characterized by the absence of coercion or constraint... Coercion includes not only blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

25. In R. v. Public Service Employee Relations Act [1987] 1 S.C.R. 313, at 395, this Court had occasion to describe freedom of association as follows:

While freedom of association like most other fundamental rights has no single purpose or value, at its core rests a rather simple proposition: the attainment of individual goals, through the exercise of individual rights, is generally impossible without the aid and cooperation of others. Man, as Aristotle observed, is a 'social animal, formed by nature for living with others', associated with his fellows both to satisfy his desire for social intercourse and to realize common purposes.

26. It is recognized in British Columbia and Canadian society generally, through the Human Rights Code and the Charter of Rights and Freedoms that the freedoms of religion, conscience and association are important. Indeed, it is the British Columbia legislature who decided to provide the special protection to the freedom of association of religious institutions as set out in s. 41 of the British Columbia Human Rights Code. This Court, in Caldwell v. Stuart, supra, adopted the following statement by Seaton J.A., regarding s. 41 (then s. 22):

This is the only section of the Act that specifically preserves the right to associate. Without it the denominational schools that have always been accepted as a right of each denomination in a free society, would be eliminated. In a negative sense s. 22 [now s. 41] is a limitation on the rights referred to in other parts of the Code. But in another sense it is a protection of the right to associate. Other sections ban religious discrimination; this section permits the promotion of the religion.

27. The Appellant evidently takes issue with freedom of religion and association and believes that the right to be free from discrimination on the basis of sexual orientation ought to supersede these freedoms.

28. The Appellant, however, is an instrument of the State. It cannot unjustifiably infringe freedom of religion and association when imposing certification requirements on TWU. This Court, in Jones v. The Queen [1986] 2 S.C.R. 284, considered a very similar problem. At 298, the majority of the Court stated:

How far the province could go in imposing conditions on the way the appellant provides instruction, if he had applied for registration of his academy as a private school or for certification of the efficiency of his instruction, I need not enter into. Certainly a reasonable accommodation would have to be made in dealing with this issue to ensure that provincial interests in the quality of education were met in a way that did not unduly encroach on the religious convictions of the appellant. In determining whether pupils are under "efficient instruction", it would be necessary to delicately and sensitively weigh the competing interests so as to respect, as much as possible, the religious convictions of the appellant as guaranteed by the Charter. Those who administer the province's educational requirements may not do so in a manner that unreasonably infringes on the right of parents to teach their children in accordance with their religious convictions. The interference must be demonstrably justified.

29. Moreover, if the Appellant wishes to infringe upon the Respondents' freedoms, as they have done, the Appellant must demonstrate that this infringement is a justifiable infringement, which is "prescribed by law".

30. It is submitted that the infringement in the case at Bar is a decision of the Council of the British Columbia College of Teachers, and as such it is not "prescribed by law". A decision by a statutory tribunal is not entitled to s. 1 protection: Ontario Film & Video Appreciation Soc. v. Ontario Board of Censors (1983), 147 D.L.R. (3d) 58, at 67, aff'd (1984), 5 D.L.R (4th) 766; Eldridge v. British Columbia (A.G.) [1997] 3 S.C.R. 624 at para. 84; Little Sisters Book & Art Emporium v. Canada (Minister of Justice) (1998), 54 B.C.L.R. (3d) 306, at 323.

31. Even if the decision of the Council is entitled to s. 1 protection, it is submitted that the Appellant cannot meet the Oakes test under s. 1 of the Charter. Contrary to the submission of the Appellant, this is not a matter for which the Court should give judicial deference.

32. The conditions that the Appellant imposes on certification of TWU must not unreasonably interfere with the Respondents' freedoms, and the interference must be demonstrably justified. It is submitted that the Appellant's refusal to certify the TWU program does not satisfy this test. It is submitted that the Appellant's decision to not certify the TWU program, because of the religious beliefs contained in the Code of Conduct, is an unreasonable infringement upon the Respondents' freedoms of conscience and religion, and association. 33. This is not to say that one may act with impunity in the name of religious freedom. But where freedom of religion and association conflicts with equality rights, the Court should endeavour to balance the competing values under the s. 1 analysis. Internal limits should not be placed on freedom of religion and association: B. (R.) v. C.A.S. (Metro Toronto) (1995), 122 D.L.R. (4th)1 at 50 - 51; M. (A.) v. Ryan (1997), 29 B.C.L.R. (3d) 133, at 157 - 8. Since the Appellant is the State, this Court should not take a flexible approach to balancing rights. Rather, the Appellant must demonstrate that limits upon the Respondents' freedoms are justified: M. (A.) v. Ryan, supra, at 158.

34. It is submitted that it is not necessary to review all of the elements of the Oakes test, because the Appellant cannot meet the "minimal impairment" and "proportionality" requirements. In this respect this Intervener adopts and agrees with the submissions of the Respondents as set out at Pages 34 and 35 of their factum.

CONCLUSION

36. Even if one assumes that the Council of the B.C. College of Teachers had the jurisdiction to consider human rights values when rejecting the Respondents' application for certification, the fact is the Appellant was plainly wrong in the conclusions it came to.

37. The Appellant was wrong when it came to the conclusion that TWU had violated the principles as set out in the Charter of Rights and Freedoms and in British Columbia human rights legislation. On the facts, TWU has done no such thing. The Appellant fails to recognize that the Charter of Rights and Freedoms and the British Columbia Human Rights Code include protection for not only those discriminated against on the basis of sexual orientation, but also for religious minorities. When rights and freedoms conflict, some discrimination may be permissible in the name of freedom of religion and association. Had the Council properly analyzed the issue, considering the Code and the Charter in full, it would have come to the conclusion that TWU had not violated Charter principles nor those expressed in the B.C. Human Rights Code.

38. Moreover, to the extent that TWU has discriminated on the basis of sexual orientation, that discrimination must be weighed against, and balanced with the Respondents' freedoms of religion and association. In the circumstance of the case of Bar, it is respectfully submitted that these freedoms outweigh the intrusion upon equality rights.

39. The concern that graduates of TWU will act in a detrimental fashion in the classroom is not supported by any evidence.

40. Further, the Appellant's decision infringes the Respondents' freedoms in a manner that is not prescribed by law and cannot be demonstrably justified in a free and democratic society.

19. Thus, in the final analysis, the case at Bar is about balancing competing rights and freedoms. In the circumstances of this case the Council of the B.C. College of Teachers failed to conduct such an inquiry and erroneously concluded that equality of rights on the basis of sexual orientation trump freedom of religion and association. They do not. One may not like or agree with the opinions or views contained in the Code of Conduct but nevertheless, the Respondents are entitled to hold such opinions and views. Had the Council properly considered the Respondents' freedoms and it is respectfully submitted TWU would have received its accreditation.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Counsel for the British Columbia Civil Liberties Association

Vancouver, British Columbia
June 19, 2000