Law Matters | Summer 2015

 

Law and passion are a dangerous mix – and the issue of sorting out conflicts between religious freedom and freedom from discrimination raises both significant questions of law and significant levels of passion.

As the adage goes, “hard facts make bad law” – so, care need be taken to assure that our passion to counter “bad facts” doesn’t lead us down the road of “bad law”.

In 2001, the Supreme Court of Canada was asked to rule on the conflict of freedom of religion and freedom from discrimination in the TWU v. BCCT case, and, at that time, they ruled that while the precepts of the TWU community standards might offend the Charter, religious beliefs are also protected by the Charter and by seeking to prohibit offensive “beliefs” as opposed to “conduct”, the BCCT acted beyond its authority.

Move forward a decade or so.  The competing Charter rights are again put in issue - this time in the context of TWU’s proposed Law School.  Passions arise, and the law is asked again to consider the competing interests.
Until this past year, I was fortunate to be a Bencher with the Law Society of Alberta, and I was privileged to serve during the Presidency of Carsten Jensen and Kevin Feth – both of which urged restraint and due consideration for the broad principals at stake, and a need to resist the easy response of flowing with the wind of popular opinion.  The Supreme Court decision in the BCCT case still stood. To blithely ignore that in favour of appeasing growing public offense with the TWU community covenant would in fact disrespect the Rule of Law – the foundation of our judicial system.

As the Law Society of Alberta stood down to allow for judicial reconsideration of the issue, it struck me that the level of nuanced and considered discourse being brought to bear on this issue was lacking – not only as one might expect of our media, but within our profession itself, even at the highest levels of some Law Societies.

The issue, in my mind, was too important to limit to “140 character” discussions, so I suggested the creation of this special issue.

Law Matters is proud to be the beneficiary of some incredibly intelligent and articulate work in the pages that follow.  Our contributors have gone above and beyond in providing a very broad examination of a very difficult question – and we are indebted to them for their effort.

The work of producing this issue has fallen primarily on Ola Malik - who has gathered this collection of contributors and facilitated this publication – and for that I extend great appreciation as well.

As our readers examine this special issue, I would recommend an open mind to both sides – taking direction from Thomas Jefferson’s advice to his nephew on how to approach the study of religion:

"Fix reason firmly in her seat, and call to her tribunal every fact, every opinion. Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear."

Robert G. Harvie, Q.C.
July 30, 2015

Download this issue in PDF format.

Practice Pointers

Fishing Expeditions and Other Flights of Fancy: Document Production Overhaul in Alberta
By Maureen Killoran, QC & Anne Kirker, QC

TWU Introduction

The Charter, a Covenant and a Controversy - Should Trinity Western University get a Law School?
By Ola Malik & Geoff Ellwand

Cross-Section

North & South
By Frank Friesacher, Karen McDougall, Kate Bilson & Anthony Strawson