 So let me just say welcome, I'm Kim Brooks and the Dean here at the School of Law. It's a pleasure to have you in the building. As you may know, we have a series of many law lectures which are lectures on current issues. Interest in the area of law, designed for people who may or may not have a legal background. So welcome to this one and please join us for others if you find the format interesting. You're in for a real treat. Tonight, Diana Mann is one of the most spectacular teachers that we have in the school. She wins the teaching award. We have to have a rule for her that says she can't win it every year so that she can't win it with others. She's been the recipient of both of our teaching awards a number of times. She's very talented in the areas that you're going to hear her talk about tonight, religion and the law. But she's also talented in property law and administrative law. She does some alternative dispute resolution teaching and workshops as well. I'm sure she'll be interesting in engaging tonight on this topic that has been, if nothing else, controversial. And so welcome, thank you very much. Don't forget to give yourself a cup of coffee if you haven't had one and please enjoy the evening. Thank you again. Good evening and welcome and thank you so much for coming out on a grey Wednesday evening. The issue of law and religion. That is the issue of how law should intersect, secular law should intersect with religion in a democratic, secular, multi-faith country such as Canada is, at least to me, endlessly interesting. And you can hardly open up the newspaper without finding some issue that relates to law and religion. So for instance, can somebody on the grounds of freedom of religion refuse to take the citizenship oath? Can a woman wearing any cob take the citizenship oath? Should a complainant in a sexual assault trial be able to give evidence while wearing any cob? Should a woman wearing a headscarf be heard in a Quebec courtroom at all? If the government decides that all driver's licenses require photographs and you have a religious group that believes that having their photograph taken violates the second commandment, does that mean they can't drive or is there something wrong with the legislation? Should a school board allow religious parents to take their children out of a mandatory ethics and religious culture class in school? Should marriage commissioners be able to opt out of performing same sex marriages on religious grounds? Should a school board be able to use its ban on weapons in the school yard to prohibit a Sikh student from wearing his kurpan, his ceremonial dagger? Can a person refuse to file income tax returns because they have religious objections to some of the ways in which the tax dollars are spent? Does a criminal code ban on polygamy violate freedom of religion? And all was my favorite. Does a municipal bylaw which bans the keeping of farm animals aside of township boundaries does that need to be amended to make room for the Amish who travel by horse and buggy? These are just a tiny number of the cases and the issues that arise around how law and religion should intersect. And as I say, you pick up the newspaper and you're going to find some issue that involves law and religion. And all these issues that I've raised are difficult because all of them involve trying to balance what the state is trying to achieve in the driver's license, concerns about identity theft for instance, trying to balance what the state wants to achieve while on the other hand providing some protection for freedom of religion. But I would suggest that the kinds of issues that I want to talk about tonight are even more difficult because I want to talk about how should we go about responding when two constitutionally entrenched rights are in conflict. So now the state has to balance one constitutional right or freedom against another. I am going to be specifically talking about the potential for collision between freedom of religion and equality rights. But I think the framework that I'm going to suggest to you could be relevant in the context of conflicts between other entrenched rights as well. And so what I want to ask today, or tonight, is when is it justifiable or reasonable for the state to infringe freedom of religion in order to uphold equality rights and then flip that on its head and ask when is it reasonable or justifiable for the state to infringe equality rights in order to uphold freedom of religion. First, you're going to get a three and a half minute constitutional law class. Some of you are going to be very familiar with what I talk about, others of you aren't. In 1982, the Canadian Charter of Rights and Freedoms became part of the Constitution of Canada. And as part of the Constitution of Canada, the Charter is directed at state action. The rights and freedoms set out in the Charter have a particular degree of protection against state action that infringes. So when I say that the Charter is directed or is a protection against certain kinds of state action what do I mean by that? What am I talking about when I say state action? Well, first of all, as we all know, the state can act through passing legislation, through passing a law. So in one of the examples that I gave earlier, the Alberta legislature passed a law that said anybody who wants to drive has got to have their photograph on their driver's license. In that case, a group, the Hatterian Brethren, raised the argument that this violated their freedom of religion and so they brought a case to court saying this legislation should be struck down because it violates our freedom of religion. They didn't win. So that's one form of state action, the state passing legislation. However, another very prevalent form of state action in today's world is that the state, the government, sets up boards and tribunals and commissions and agencies. All these bodies we lump under the heading of administrative decision makers and you're familiar with them. It goes all the way from school boards to human rights tribunals to labor boards to occupational health and safety tribunals. The list goes on and on and on and on. So these administrative decision makers are set up to make decisions to carry out state policy. So for the example that I gave of the Sikh student who wanted to wear his kurpan on the schoolyard, who was not challenging a piece of legislation, he was using freedom of religion to challenge the policy of an administrative decision maker. In that case, the school board and he won at the Supreme Court of Canada. Similarly, in the case that we're going to be looking at a little bit later in the Trinity Western case, there's a decision of the Nova Scotia Barris for society and administrative body in that context that was being challenged. So the state can act through and the Charter applies to legislation. The Charter applies to administrative decision makers such as boards and tribunals. You also see freedom of religion and other constitutional arguments coming up in other Charter arguments, coming up in the context of other litigation where the court has asked to make a ruling. So for instance, you know, where the court has to make a ruling in the context of a sexual assault trial, as to whether or not the complainant can wear a niqab covering her face when she gives evidence. In this talk, I'm going to focus on the state action through legislation and through those boards and tribunals, those administrative decision makers. So I have said that the Charter can be used to challenge the actions of the state, where those actions allegedly violate the rights and freedoms entrenched in the Charter, but none of the rights and freedoms in the Charter are absolute. And that of course leads to the kind of issues that we're going to talk about in a minute. If legislation is challenged as infringing a Charter right, the legislation can still be upheld if the court is persuaded that the infringement is justifiable in a free and democratic society. And this comes from Section 1, the very first section of the Charter. Before we get to enumerating all the rights and freedoms, we have this section that says in effect these rights and freedoms have got all kinds of protection, but they're not absolute. So the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. So when the legislation is being challenged as violating a Charter right, Section 1 tends to get a lot of play. However, I also gave the example of a board, a tribunal, an administrative decision maker whose decision is being challenged as not taking sufficient account of Charter rights. And in that case, of course, the test ends up, I would suggest, being somewhat, in fact, very similar, but worded a little bit differently. There the issue is going to be, in most cases, did the administrative decision maker act reasonably? And one way of asking if they acted reasonably is to say, did that board, that tribunal, that committee, that whatever, reasonably balance the Charter right or rights in question with the purpose of the legislation that gives it its powers. Okay, so thus far I said that no Charter right or freedom is absolute, and that sometimes a restriction will be allowed and infringement will be allowed because it's found to fit the test under Section 1 or it's found to be reasonable, but that doesn't mean that Charter rights are irrelevant or so watered down that we don't need to pay any attention to them. I would suggest that the Charter rights and freedoms in the Charter do put some breaks on government action, can apply the break to government action. The state cannot, because of the Charter, the state cannot simply restrict minority rights, cannot simply restrict the rights of unpopular groups just because it has a political majority, just because it would be politically expedient to do so. So I've already introduced you to Section 1 of the Charter. There's two other sections that I want to tell you about before I really get into the heart of my talk. The first, so you have Section 1 which we just looked at, Section 2 of the Charter goes on and says that everyone has certain fundamental freedoms, and among those fundamental freedoms, and in fact the very first one that is listed, this is the first right that occurs in the Charter, is the right to freedom of conscience and religion. This is also the section that talks about freedom of expression and freedom of association and so on, but I want to focus on freedom of religion. So what does freedom of religion mean? Well, as you can well imagine, there's been a lot written about that. I am just going to give you one quote, one quote from the very first case, a 1985 case, the very first time that the Supreme Court of Canada had to turn its mind to what freedom of religion means under the Charter. So for the law school types, this is the Big M Drug Mart case. This is what the court had to say. A truly free society is one that can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms, and of course this is a fundamental freedom. Freedom must surely be founded in respect for the inherent dignity and inviolable rights of the human person. The essence of 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. So that's one section I want you to hold in mind, two A. I also want you to think about section 15 of the Charter, the equality rights provision of the Charter, which tells us that every individual is equal before and under the law, and has the right to the equal protection and the equal benefit of the law without discrimination. And in particular, without discrimination on a list of grounds are given here, race, national or ethnic, origin, color, religion, sex, age or mental or physical disability. In a case after the Charter became part of our constitution, the Supreme Court of Canada read in sexual orientation as an analogous ground, because you'll see the wording doesn't say and only on these grounds it says and in particular. That leaves room for the court to read in other grounds that then have the same protection as those listed here in section 15. So read this as though it also said and sexual orientation. So my question for this evening is what happens? What happens when section 2A and section 151 of the Charter conflict? When should one person or one group's Charter rights trump those of another person or group? How do we work that out? What principles do we apply? How do we find a just balance? And so all that is background for going back to the questions that I asked earlier. When is it justifiable or reasonable for the state? Because again, we're talking about state action here. For the state to limit one of these Charter rights in order to protect the other. And as I said, I'm going to be looking at this question in the context of particular dispute. That dispute regarding the proposed, not yet built, not yet there, but the proposed law school at Trinity Western University, which I'll probably colloquially refer to as TWU in the interest of time. But I also hope that you will take away from this principles that are relevant in contemplating other issues and other kinds of conflict. So let me give you just a little bit of background then for anyone who hasn't been following the controversy, just a little bit of background about Trinity Western. So Trinity Western University, which is located in Langley, British Columbia, is a private and privately funded university. It was founded as a college in 1962 by the Evangelical Free Church of America and became a degree granting university in 1979. It offers a wide range of undergraduate courses and has since then added on to professional programs, nursing and education. Its curriculum and teaching reflect, very purposely reflect, an Evangelical Christian outlook. While students, neither students nor faculty, are required to make any profession of faith in order to be able to teach there or go there, they are required to sign a community covenant. And the community covenant starts by stating the university's mission, core values, curriculum and community life are formed by a firm commitment to the person and work of Jesus Christ as declared in the Bible. It then becomes more specific. I've shortened it here, there's a whole list of things that the signers of the community covenant say we're signing on to do to be loving and good and compassionate and those things. And then it says, and by signing this covenant, here are the things that we are going to not do and that's where things have become contentious. So those who sign the covenant, i.e. faculty and students of TWU, agree to avoid behaving in certain ways and particularly to abstain from destructive communication, harassment, dishonesty, theft, sexual intimacy that violates the sacredness of marriage between a man and a woman. That will be the one we're coming back to, the use of pornography, drunkenness, the use of alcohol or tobacco on campus or at TWU sponsored events. And I would note that this is not that different from codes of conduct that are assigned as a number of American law schools which are recognized by the American Bar Association. So some years ago, TWU decided that it wanted to open a law school. So they consulted with various judges and lawyers and legal academics and so on and after all that put a proposal for a law school before this body that's called the Federation of Canadian Law Societies. So let me give you a wee bit of background there. Law is what we call a self-regulating profession. That means that the profession that in each province or territory there is a body sometimes called a law society, sometimes called a barrister society that regulates the profession. And it regulates this. One of the key elements of self-regulation is that one regulates in the public interest. So Nova Scotia, the Nova Scotia Barrister Society, our law society here is given power under the Legal Profession Act to regulate the practice of law in Nova Scotia. And one aspect of regulating the practice of law is regulating who can become a lawyer. So what counts as a law degree? What are your requirements for articling? Very articling means sort of the law version of apprenticing. Those things. However, provincial and territorial law societies across Canada had delegated to this sort of umbrella body, the Federation of Law Societies, the authority to determine what would count as a law degree, as a professional law degree that then would make one eligible to article. And so that is why when TWU came up with this idea that it would like to create a law school and did some research and so on, when it got ready to have a proposal, that's why it put its proposal before the Federation of Law Societies in effect saying, please check off that our students would count as having a law degree, which would be sufficient to allow them to article in Canada in the various provinces. So the Federation set up a special advisory committee which did research and talked to various people and so on and so on. And ultimately this special advisory committee came to the conclusion that there is no public interest reason for refusing to recognize a law degree from Trinity Western. And so after that the proposed law school did receive approval from the Federation. However, throughout 2014, this became a very hotly debated topic among almost all the law societies across Canada. A number decided they would accept TWU grads. Should there ever be TWU grads? This is still just a proposed school. But if there ever were TWU grads, a number of the law societies said yes, you could come an article in our province. However, a number said no, you couldn't. And Nova Scotia was one of the latter. In April of 2014, the Nova Scotia Barrister Society, which regulates the profession here, passed a resolution stating that because in their view the provision in the community covenant regarding no sexual intimacy except within the sacredness of a marriage between a man and a woman, that that was discriminatory and therefore graduates of TWU would not be permitted to article in Nova Scotia unless one of two things happened. Unless TWU allowed students to opt out of signing it, the covenant, or unless TWU amended the community covenant to take out that phrase that was seen as discriminatory. Trinity Western sought what we call judicial review, which is exactly what it sounds like. They went to court and asked a judge to review the decision of the Nova Scotia Barrister Society. In other words, they went to court to argue that the Nova Scotia Barrister Society had acted unreasonably, had not taken sufficient account, because remember the Barrister Society has to take account of the Charter, had not taken sufficient account of freedom of religion in passing its resolution. In late January of this year, so very recently, Justice Jamie S. Campbell of the Supreme Court of Nova Scotia quashed, struck down, the decision of the Nova Scotia Barrister Society saying that the Nova Scotia Barrister Society did not have the authority to do what it had done, that the Nova Scotia Barrister Society was authorized to regulate the profession of law, but was not authorized to regulate law schools. And that, in fact, was what this resolution was attempting to do. So he started out by saying, you're doing something you don't have the authority to do. But then went on, and it's really this latter part that I want to focus on, and said, but even if you did, even if we were willing to assume that you had the authority to do what you were doing, you still have to take reasonable account of the Charter rights at play, and you did not take reasonable account of freedom of religion. So, was this an appropriate outcome? Obviously, a hotly debated topic. I'm strongly committed to equality rights. I was in third year law school when the Charter came in. I was delighted to see protection for equality rights in the Charter. It mattered. And since the advent of the Charter, it is now more difficult for the state to discriminate on the basis of gender, race, disability, and so on and since the Supreme Court of Canada read in sexual orientation on that ground as well. And we have seen enormous and much-needed strides in removing discrimination against the LGBT community. These are all good things. Further, the church that I belong to, the United Church of Canada, was one of the first, if not the first, to allow for the ordination of openly gay and lesbian ministers. And in 2005, when same-sex marriage was being debated in Parliament, the then moderator of the United Church opened letter to every member of Parliament providing not just political but theological religious reasons why same-sex marriage should be made the law. Therefore, the religious tradition to which I belong does not take the same view of marriage as it is exemplified in the Trinity Western Community Covenant. That said, the more I have thought about these issues, the more I have thought about what needs to be balanced on each side of the scale, the more convinced I have become that the Nova Scotia Barrister Society and other Barrister societies who would wish to keep out TWU students were wrong or unreasonable and that Justice Campbell was absolutely right on, hit the nail on the head when he said that the decision of the Barrister Society did not take sufficient account of freedom of religion. In my view, Justice Campbell's decision is lucidly reasoned, it engages in a careful balancing of rights and it shows a clear understanding of what freedom of religion entails in Canada today. I want to tell you now a little bit about what previous cases have said about how courts should go about balancing or anybody should go about bad courts or Barrister societies when they're deciding on these things. One of the principles that are to be applied when trying to balance two constitutionally protected rights that are in conflict with each other. So I'll tell you about the principles and then I'll tell you about how they are applied by Justice Campbell in his decision. I promise that I will leave plenty of time for discussion afterwards so if you have questions and comments on any of this I would be delighted to hear it. What have we been told by the courts are the principles to apply when there is a conflict between two constitutionally protected rights? First of all, the courts have said look closely and see if that really is the case. Is there really a conflict there? I'm sorry, I'm behind, that's what he said. And there we are. So first of all, if a dispute is characterised as involving a clash between two constitutionally protected rights the Supreme Court of Canada has said take a good hard look at it. See if that really is what's happening there. Maybe there really isn't a conflict. Perhaps a closer look will show that both rights are not in competition or that both can be protected or accommodated. And I would of course agree that where it is possible to have a mutual flourishing of rights and freedoms that's the optimal outcome. Further, even if there are rights in conflict maybe we can craft, maybe sometimes we can craft responses that share the protections and burdens of the law. So each gets some protection and some burden and neither side really is elevated over the other. Those situations are wonderful. However, I want us to turn our mind to the much more difficult question of what do we do when there really is a conflict. When the only way of resolving that issue is to say your constitutional rights are going to get more protection and in order for that to happen your constitutional rights are going to have to get slightly less protection. And I would suggest that although it's grand that the Supreme Court of Canada says take a good look, see if there really is a problem here. Maybe there won't be a conflict. Dandy idea. However, I would suggest to you that if there truly is a conflict it will not benefit anybody to try to pretend it's not there to try to mask the reality of that conflict. If a particular freedom is engaged let's say so. Let's say so and let's deal with that head on. And so interestingly the Nova Scotia Barrister Society argued that freedom of religion was not actually engaged was not actually affected by their resolution. Justice Campbell said, no, you're wrong. He noted that while for many Canadians today studying the law is a secular pursuit but this is not so for evangelical Christians whose, quote, religious faith governs every aspect of their lives. So in Justice Campbell's view attending a Christian law school is therefore an expression of faith and an important aspect of their religious identity. He went on to say, the mandatory covenant is part of what makes TWU a distinctly evangelical Christian institution. It's easy for outsiders to point out aspects of faith and practices of faith that don't seem that important but we don't get to make that call. Now I'll just stop for a minute and tell you a little side story. A year or two ago I happened to be in Kingston, Ontario so I went back to visit Queens Law School where I got my degree from and was having a lovely wee chat with a very nice dean at Queens and somehow or other, I don't know how, we got talking about TWU and I said, and he was really in support of what the Nova Scotia Barrister Society ultimately did and saying no, students from there shouldn't be able to article and I said in saying that what weight have you given to freedom of religion? Do you not think that that affects the freedom of religion of the individual? And he said, well I really, really hope that if we put this pressure on TWU they'll come to realize that their views on marriage aren't that central to their faith. And I thought, not sure that is a winning argument, right? You can say, I disagree with you. My faith tells me differently. I'd like to argue about the theological basis for your faith but simply to announce if you just thought a titch-herder you'd realize that this thing that you wrongly have thought was absolutely central to your faith isn't. Not a particularly winning argument. And it's that kind of argument that the response to that kind of argument that is encapsulated in Justice Campbell's statement it is easy for outsiders to point out aspects of a faith and practices of faith that do not seem that important but we don't get to make that call. He went on to say that trying to coerce evangelical Christians into disavowing beliefs that they sincerely hold is not a trivial infringement of freedom of religion. So if freedom of religion is at stake here we have to go on and ask what do we do? How do we balance this conflict? Importantly, or very importantly what principles do we apply in order to do so? Well, where constitutional rights are in conflict the courts have said you've got to do the hard work of doing a case by case analysis as to what the outcome should be in this particular case and how do we go about doing a case by case analysis? Well, the key principle that we keep in mind as the background to all the rest of our analysis is to remember that there is no hierarchy of constitutional rights. The courts have said and this is absolutely reflective of the language of the Charter that no right or freedom in the Charter is more special more entitled to protection than another right or freedom in the Charter. As between any two rights if there is no hierarchy that tells us that sometimes one right should win when there's a conflict and sometimes the other right should win when there's a conflict. All the protections of the Charter not just some, not just the socially popular all the protections of the Charter are important bulwarks against the potentially coercive power of the state and that is an incredibly important point to remember that there is no hierarchy and I would suggest that this is a challenge for all of us. Think of all the situations you can where there could be a conflict between equality rights on one hand and freedom of religion on the other. If your response to every one of those is to say that freedom of religion should always win or if your response to every one of those is to say that equality rights should win you are flinging the constitutional underpinnings of this country to the winds there is no hierarchy of Charter rights. We need to challenge ourselves I would suggest to be sure that we don't simply see the Charter as upholding those rights and freedoms that support the views we most agree with. So if we accept that there is no hierarchy of rights and that must be the starting point for legal analysis in Canada today then when a law society is faced with deciding whether or not to accept graduates from TWU's proposed law school or a court is reviewing such a decision of a law society the law society cannot start from the presumption that one right or the other should necessarily prevail in other words there cannot be an assumption that one right as opposed to the other is always going to be more aligned with the public good and so this came out thoroughly in the decision of Justice Campbell throughout the decision he reminded the reader that quote rights and freedoms are not absolute the protecting pluralism involves a certain amount of messiness and that living in a multicultural society means learning to live with although not necessarily condone a range of beliefs and practices that do not cohere with one's own views or with the dominant moral consensus and in keeping with that repeated statement that we've had from the Supreme Court of Canada that there is no hierarchy of constitutional rights Justice Campbell reiterated that the state cannot give one right a presumptive priority over the other but that's not part of being the pluralistic and multicultural state that we are he went on to say that considerable considerable progress has been made on issues of gay and lesbian rights and clearly he saw that as a good thing but that does not mean that equality rights have quote jumped the queue to now trump religious freedom so if there is no hierarchy we must have principled ways of deciding when should this right be seen as tipping the balance and when should this right be seen as tipping the balance we need principled ways of deciding which right should trump in a particular context well we have been told by the courts that the benefits of protecting one right must be weighed against the harms of restricting the other right and I would suggest that in today's world in Canada for many of us it may be quite easy to see the benefit of the Nova Scotia Barrister society's position it is as described by Justice Campbell a symbolic statement of solidarity with the LGBTQ community but I would also suggest that we need to have more robust understandings of the harms and benefits that relate to Charter rights that don't fit as comfortably with prevailing social norms so don't get me wrong I am delighted that equality is more and more coming to be seen as a prevailing social norm yay however what I am saying is we cannot use the Charter to only uphold those rights that fit with prevailing social norms and I would suggest that in today's world it is those who are making freedom of religion claims who are likely to be making the non-normative, the counter-cultural claims and I suggest to you a harm so what's the harm of doing this what would harm of telling TWU they should just take that section of their covenant it's not that big of a harm well harm cannot be viewed simply from a dominant perspective as that will necessarily privilege the dominant perspective which is surely not the point behind having entrenched protections the whole point of entrenched rights is to provide some sort of protection from the state if you are part of the prevailing dominant group you probably don't need protection from the state you can vote your party in you can get what you want it's when you're in the minority position and sometimes the unpopular minority position that that's when entrenched rights actually have some clout so I would say that in order to do fair balancing decision makers need to be attentive to the harm that's actually done when the state encroaches on religious freedom and equally need to be attentive to the societal benefits of protecting freedom of religion and this can be difficult because for at least many of us it may require imagining ourselves into a world view that is utterly different than how we actually feel about things so let me take a slightly different example it doesn't have to do with conflicting rights so much but it's asking you to imagine yourself for a moment into a religious world view which I'm guessing many of you in this room don't share and I want to talk about the Jehovah's Witness blood product cases where a Jehovah's Witness parent says I know my child may die without that treatment but it's part of my religious belief that we cannot take blood products therefore my child can't have the treatment and the courts have said assuming a small child here not old enough to decide for themselves the courts have said so sorry but we'll be taking the child into our care for a short time and ensuring that they have the treatment I'm not saying those cases should be decided differently I'm not saying that at all but I am saying that I would like the courts in those sorts of situations to pay more attention to what they're actually doing and to acknowledge more openly the harm that they're actually doing they're doing that harm to their parent's religious faith in order to protect the child and I very much support that balancing in that situation but I would like the courts to acknowledge the harm that they're doing and so it seems to me that it's easy for us to imagine why a children's aid society or why a hospital steps in and says oh my soul we can't let this child die because the parents are going to refuse medical treatment but are we also willing to take the step of imagining not condoning not agreeing with but imagining it from the position of the parent who presumably believes that by allowing their child to have this medical treatment they have consigned their child to everlasting damnation that's a big thing for a parent to deal with and I would at least like the court to recognize that that's a big thing for the parent to have to deal with albeit then going on and setting the parents rights aside but doing it I would think respectfully so what I'm trying to argue here is that we have to be able to picture what freedom of religion means from the perspective of someone who may hold very different beliefs than we do and so just as we have to be able to picture the harm that is experienced by someone whose faith is restricted by the state we also have to I think take very very seriously the societal benefits of giving a robust understanding to freedom of religion giving freedom of religion a large and liberal interpretation and again if we move from the individual to the society I think many of us can envision can very easily envision the societal, the collective benefits of upholding equality rights and those benefits are huge but I'd say that for many people in a secular society the collective benefits of upholding freedom of religion are hard to grasp and when the particular religious faith is seen as illiberal it's even harder to grasp and so my argument here is it's significant although of course not absolute no right is absolute in our charter freedom of religion is not absolute that freedom of religion protects society there's a societal good in protecting freedom of religion that is separate and apart from the content of the particular religious belief and I say this for at least four reasons first I completely acknowledge that a state cannot function without some degree of allegiance from its citizens but a state that demands complete allegiance from its citizens and Brooks no dissent quickly runs the danger of becoming totalitarian and repressive therefore belief systems that allow individuals to confront the authority of the state can play a role in moderating that authority now of course those belief systems need not be religious they could be based on conscience other than religion but frequently they are and thus it has been argued that thanks to its ability to act as a counterweight to the power of the state religion makes a critical moral and social contribution to society and in a modern state religion remains one of the last remaining forces able to fulfill this role a role so vital to the democratic play of checks and balances secondly I would suggest to you that finding the right way to live together in community is not an easy task it is surely the key concern of government and I would suggest to you of most religions creating room for expression of multiple and different and conflicting understandings of the good admittedly allows for dissension allows for acrimony and let's be upfront allows for the expression of views that may not be helpful at all in and of themselves but I'm suggesting that allowing people understanding of the good to be expressed is a benefit it makes it more difficult for the state to try to narrow public debate regarding fundamental issues so Alvin Esaw a law prof west has said that we need multiple sources of meaning if genuine pluralism is to be achieved in the face of the totalizing forces of the state and popular culture the third reason for giving significant weight to freedom of religion even if you totally disagree with the belief being stated is that individuals who feel that society provides some room and even some fairly respectful room for living in accordance with their religious dictates or for speaking up in accordance with their most deeply held views are I would suggest less likely to become disgruntled or hostile citizens fourth, do we really trust the state to decide for us which beliefs are harmful and which are simply challenging or dissenting and even if we trusted the state to get that distinction right what about the cost of using the power of the state to root out deeply held beliefs to use state coercion to root out deeply held beliefs perhaps discussion perhaps education perhaps example are better ways of at least looking for common ground and finding respectful ways to live together if we can't find common ground and I would suggest to you that history tells us that finding the state to silence minority voices absent very strong reasons to do so has rarely been a wise move so all of that is to say we gotta weigh the harms and the benefits on either side let's be attentive to the harms and benefits relating to freedom of religion that isn't in step with prevailing norms coming back to the TWU decision in terms of weighing the benefits and harms at stake in that decision Justice Campbell pointed out what do we have, he said on one hand we have a symbolic statement in solidarity with equality rights that's hugely important but it could have been achieved that statement could be made in other ways on the other hand you're a significant harm to prospective students freedom of religion so we've said so far what are the principles that we look to in trying to deal with these sorts of disputes there's no hierarchy we try to balance the harms and the benefits and we're also told oh wait now let's get that one we're also told that that weighing of harms and benefits should be based on evidence not mere speculation the current dispute with law societies is not the first time that Trinity Western has been involved in litigation involving its community covenant some years ago Trinity Western applied to the British Columbia Council of Teachers for approval of a fifth year their education program up until then if you wanted to be a teacher for years at Trinity Western then you trotted off to Simon Fraser to do your fifth year and they said we'd like to be able to do our fifth year here have the whole education degree done at TWU the British Columbia Council of Teachers focused on the same element of the community covenant and said no we cannot allow the you would have the full education degree it would not be in the public good the Trinity Western went to court went all the way to the Supreme Court of Canada and Trinity Western was successful the majority of the Supreme Court of Canada was not willing to accept without evidence and there is no evidence being put forward on this was not willing to accept without evidence that teachers who received their education degree from Trinity Western were more likely than other students to treat the kids in the classroom in homophobic ways similarly said the court if four years at Trinity Western would reach you to that one to that degree would one year at Simon Fraser cure you probably not you've got no evidence you can't ask us to make our decisions based on speculation and I think it's really important to note what was not being argued in this case in the Trinity Western case it's not being argued I mean some people have argued these sorts of things in commentary what was being argued in the case what was before the court it was not being argued that the proposed law school would be unable to teach constitutional law human rights law, legal ethics the advisory committee of the Federation of Law Society said accepted they could teach those effectively and that wasn't challenged it was not being argued I think the lesson about you might need some evidence here had perhaps been taken to heart that the law school would be more likely to treat clients or others in a homophobic fashion than would lawyers trained elsewhere it was not being argued that the barrister society without this resolution would have no way of protecting the public against homophobic lawyers that's not true of course they do have it discriminatory conduct would clearly contravene the Nova Scotia Barrister Society code of professional conduct it was not being argued that this resolution of the Nova Scotia Barrister Society would protect the public if indeed the public needed that protection against those already in the legal profession who held traditional views of marriage presumably there are a few of those in order to do that you would have to disbar all lawyers who belong to religious traditions who hold traditional views of marriage so very few Catholic lawyers I would say after that perhaps instead the Nova Scotia Barrister Society argued that allowing Trinity Western graduates to article in Nova Scotia would be tantamount to condoning discrimination and that was not accepted by the court just as Campbell was not willing to accept the proposition that allowing TWU graduates to article in Nova Scotia would be evidence of Nova Scotia Barrister Society failing to provide a non-discriminatory environment he said there have already been substantial efforts made to open the profession to members of the LGBT community discriminatory conduct would be dealt with under the code of professional conduct and he said quote there is an important difference between the failure to regulate against discrimination in the profession and failure to sanction someone else i.e. TWU for legally exercising religious freedom the last principle to remember here when one is going about this case by case balancing that is required is a context is important and particularly when we are talking about the charter which applies to state action it is important to say are we looking at a state actor are we looking at a private actor who is involved here and of course it is important to remember that Trinity Western was a private and privately funded law school so Justice Campbell noted in his analysis that TWU is a private university it is not part of the state it is not bound by the equality provisions of the charter he went on to say many may see the community covenant as offensive it is not unlawful and individuals in Canada have the right to attend a private university which requires students to adhere to a quota of conduct based on religious belief arguments have been made I mean just in general commentary that because TWU like other universities is created by statute that somehow makes it public that somehow makes it part of the state well the United Church of Canada is created by statute and I would argue mightily that the United Church of Canada is not a state functionary nor does one become official simply by joining a self-regulating profession so I would take a very different issue a different perspective on how these rights should be balanced when we look at the issue of marriage commissioners wanting to opt out of doing marriages on religious grounds in that case I say you are taking on a state function you abide by the state definition of religion here we are talking about people exercising their right to go to a private university and that private university is not bound by the Charter the Nova Scotia Barrister Society however is bound by the Charter and therefore in doing the balancing here had to take reasonable account of the freedom of religion rights of prospective students so with those principles and simply say this is all about trying to find a principled way to resolve conflicts between constitutionally entrenched rights and surely we want to avoid resolutions that rely that are just utterly idiosyncratic that rely on the personal views of the decision maker and presumably we also want to avoid decisions that automatically elevate one Charter right or freedom over another instead when there truly is a conflict between two rights or freedoms protected by the Charter such as freedom of religion and equality rights then the decision maker must do a careful case by case balancing those scales start out even and you've got to look at the context and the evidence and the harms that's in each case to decide whether in that particular case this is the right that should Trump or this is the right that should Trump and if we genuinely do this balancing there should be times when the scale tips in favor of equality rights and there should be times when the scale tips in favor of freedom of religion and my argument has been that the TWU case falls particularly in the second category so I'll stop there I would welcome any comments on this but also as I said law and religion is a hugely broad topic I am happy to chat with you about any aspect of freedom of religion in Canada today so thank you very much questions, comments what would people like to tell me about ask me about disagree with me a lot yes well first of all let me commend you on the presentation and the clarity well thank you which you presented a very important matter in the life of the country I'm just I couldn't help thinking in the light of certain I've got to be careful here I'm not a lawyer but I actually talked to the dean years ago when I decided I didn't want to come to that probably a wise decision some of my students write this down while we're probably watching they've done the thing I must say this is a terrible thing to say in one sense I just wish the members of the Supreme Court of Canada could have heard your lecture today they came up with the principle and I've got to give an account of this to my wife when I go home tonight so in the interest of domestic balancing and for tranquility would it be safe for me to summarize your point by saying in the mixed in the context of your talk that what we see in effect is a contest a debate between Viscount Sankey who urged us in the person's case of 1929 which you know better than I do which lay dormant until 1982 when the Charter he urged Canadian judges to interpret the Constitution of Canada liberally he did say nothing about balancing and secondly if I could say that the Supreme Court of Canada today has explicitly in the today decision reached into a source extra judicial source that is to say Mr. John Stewart Mills essay on liberty and introduced into the criminal code the justice of harm so would it be safe to say that what you're talking about is a Canadian judiciary that is mocked in a debate between Sankey and John Stewart Mills First of all I got to say First of all I got to say I'm impressed I married to another lawyer and we don't talk about Viscount Sankey at the supper table so I'm impressed I think what we do see here I don't know there's an interesting Viscount Sankey and John Stewart Mills I hadn't thought about particularly in that way but I think what we are seeing here is real debate on really important issues about how do we interpret the Constitution how do we deal with the fact that the provisions within the Charter themselves will at times come in conflict and so yes what is going on here is very much a striving toward with zigs and difficult moments and so on but a striving toward finding an interpretation of the entrenched Charter rights that will reflect our secular our democratic our multi-faith our pluralistic our society which is this is also very tied up with of course freedom of expression too so yeah any other comments or questions yes Salah we really did enjoy Justice Campbell's decision I think it is very well written and as well I think everyone should read what knows 15 is great I'll do that this evening I'll just check back on footnote 15 that's it I think there's I think there's one argument that I don't think Justice Campbell entirely succeeds in fully addressing and I'd like to kind of ask you for your opinion on it there's a point where he talks about the numbers there's this argument that came up in the NSBS's decision on this issue headed the litigation itself about the question of chairs there's a rather small handful of law schools in Canada there are studies there for every year a relatively small number of seats available for people who are going to be entering the profession and there is this issue that if you have this discriminatory school even if it's just one people who are going to be excluded from a certain number of seats which lowers the certain amount of people that are going to be able to enter the profession in his decision Justice Campbell does talk about this he says yes this is somewhat a relatively important argument we have to confront it but then he does this thing where he does look at the numbers and he suggests well it's so small that we don't think it's going to be sufficient to really be an issue here or the NSBS though it may have a point is not really to succeed in addressing this issue because the numbers are still low but shouldn't the fact that the argument still stands even if it were one student that were denied it would still stand and he talks about it but even if it were one and think about like if there were once school students at Trinity West who say midway through their degree came out of this game they would have an arguably a charter case against the school that would go to the Supreme Court that so shouldn't the fact that he addresses numbers that way suggest that we're no longer in the territory and we're no longer so comfortably in the territory of absolute rights in one case or another but that there's this sort of more uncomfortable privileging going on there so I'll come back to your numbers question in a second and I know that that is the heart of your question and I will certainly address that but I want to just say a couple of the things first of all just to be really accurate simply coming out as gay would not get you kicked out engaging in sexual intimacy outside the marriage outside the a marriage between a man and woman could get you kicked out so I think it's you know we need to be fairly clear about what what is at stake here so that was the first thing on the second thing you said if a student were required to leave because they had violated that section of the covenant so it easily could be somebody engaging in same sex relations it could be somebody engaging in opposite sex relations outside the marriage but let's say we have a lesbian student who violates that section of the covenant and is asked to leave I don't think you could have a charter challenge the school is not a state entity the school is not subject to the charter all kinds of public outcry and you know public pressure is a great thing to try and see if people can change their views but I don't see a charter challenge but coming back to your question on the numbers that argument about well you know it's a fairly small school so the number of students who will not feel comfortable going there because they can't sign onto that covenant is fairly small and we don't need to worry about us and you're saying surely that's a problem even if it's one student I guess I'd go the other way and say I wouldn't hang my hat on the small list if there is a right in Canada for and we can debate whether this should be a right or not but at the current moment there is a right in Canada to set up a private law school and if it is able to teach what it needs to teach and the Federation of Societies Law Society said it has then then I think as I said before let's not mask this let's meet that really uncomfortable truth head on and say yes it is from my theological stance problematic that you have it theologically problematic that you have a school that takes that stance but I don't see that as saying that is a reason for trying to use the law to shut them down there are hard things on either side and in this case I say that's one of the hard things we live with yeah Mark I'm just wondering did you say the barista societies all across the country are subject to each other and freely the rest of them isn't so in the society in making this kind of decision is using its statutory power given to it under legislation and the Supreme Court of Canada has said that when somebody does that using its statutory authority to make a decision it must act in most cases reasonably sometimes the test is correctness but usually reasonably and when a charter right is at stake the test will be whether or not the border tribunal or in this case barista society took reasonable account of the charter right so my follow-up question then is does that in your opinion do you think that because of that there was pressure barista societies to want to to want to vote the way they did because I would imagine that not every single member of barista society supported the final decision there must have been some members who thought you know should be accredited so I wasn't at the meeting but I guess that it was contentious and strongly on both sides of the issue I think there were far more people there speaking in favour of the position that the barista society ultimately took but there are certainly voices there saying whether for freedom of religion or in some cases freedom of expression reasons because the two really really do cross over in this situation the Nova Scotia Baristas Society should not block TWU grads it was highly contested that the barista society my understanding and anybody and I know there's people in the room who are there can disagree with me my understanding is that more of the voices spoke in favour of what the barista society ultimately ended up doing of the voices in that room now that wasn't the poll of all members of the public that wasn't the poll of all members of the barista society yes you mentioned the word context and I think if you look at this whole thing one of the things that was missing from day one was context you know this is a whole document it's not just one sentence and it's a community covenant it's not a contract if you start reading through the document you find that you don't have to believe anything to be able to sign the covenant you're absolutely right that it doesn't require a profession of faith in any way it simply says as a community and as individuals we will try to act in these ways and we will try we will try not to we won't act in these ways I think it is interesting and worthwhile reading the covenant as a whole I think there's probably parts of it a passion all that good stuff all like that you can't take one little word out of it a sentence that everybody has zero been on is a covenant opposed to pre-meritual sex for everybody right but I guess here's it has to do and then you have to go back into what church this is they obviously they believe in a literal interpretation of the Bible so you're into what does the Bible say so the issue if you look at it in context is way beyond one little sentence and the one little sentence does not discriminate against anybody except the student who wants to go there and is willing to say that they will forego pre-meritual sex and the prohibition against pre-meritual sex is held by a fair number of different religious bodies and it is rooted in fact in the Bible and the final thing is that in fact the pre-meritual sex for the group of young people who are going to any university in the country is unfortunate to stop and it doesn't carry over after you leave it's a test that's in the T-plus well I guess I would say a number of things first of all I do agree that people should read the covenant as a whole there are as I said I think there's some things in there that we might all think there's some things that are very clearly religious and so those who are secular might say well that's not the way I would go about it but I'm fine with that and then there is this section so I would absolutely say people should read us in the whole context on the other hand I guess I do think that there is something particularly it's not just a section that we can slip over and not pay much attention to you're absolutely correct that what it does starting out is say no sex no premarital sex the difference is if I'm a student at TWU or a faculty member because faculty members sign onto this too and I want to engage in sexual intimacy because I'm straight I have the option of marrying if you're gay or lesbian you don't have the option even though the country even though the government allows it you don't have the option because they say the sacredness of marriage between one man and one woman so I actually do think that it has a very differential impact for gay and lesbian students it's not the teaching of the gospel yeah I guess I'd just say I think it does have a very differential impact I think it's an impact that I profoundly disagree with from a theological basis I do acknowledge that there are many many church folk that hold that position and I'm here saying we can't and we shouldn't preclude them from being part of the legal profession even though I disagree with them on that theological point but I I would give significance to it but I do say also do read the whole thing Kevin you were going to say something I actually had a question but also just in response to that lens but I think some of the context behind that you look to other institutions that have that come there's a long history of educational institutions in the US that have provisions like that who use it to target gay and lesbian students for their sexual activity and we don't have the same history of targeting straight students for their sexual activity it's one thing to say that it applies the same on the face of it but it's it can be forceful against straight students because it's possible for straight students to engage in sexual activity in a way that goes under the radar in a way that isn't necessarily for gay students especially gay students who choose to come out of the closet which tend to be the students who are targeted in the American universities that have similar provisions so I can't agree with the idea that the clause isn't in and of itself discriminatory I do agree that it's a kind of discrimination that they ought to be entitled to do within the context of their own religious institution but I don't think we can trump it up it's not discriminatory just because on the face of it it reads a certain way and I think if all you had was the first phrase of not if all it said was not engaged in sexual intimacy except within the sacred confines of marriage or something then assuming that you had sort of equal enforcement which I know is another issue you could say that that wasn't discriminatory but as far as I can see as soon as you say except within the sacred bounds of marriage between a man and a woman it does set up a very strong distinction between same-sex relationships and opposite-sex relationships but I think you had a question too Kevin the charter protects religion in two different sections and I just wonder if if that affects how we think about this analysis because there's freedom of religion up front as kind of a there as a liberty right but then within the equality right as well there's a right against discrimination on the basis of religion and I think it's possible to look at this we've talked about it as a freedom of religion case it's possible to look at TWU as a religious discrimination case I mean they're presumably as a future graduating class of evangelical Christians who are being denied the right to enter and that's a bit sort of more clear on the face of it discrimination against individual it doesn't seem to be how we thought about the conflict and maybe that's because the two at a constitutional level sort of blend into each other but I wonder if that makes a difference to how we think about the conflict I don't think it would necessarily and I don't think you're suggesting it would but I don't think it would necessarily make a difference as to outcome but I do think it's well and you're right I didn't mention that I focused only on 2A but section 15 remember when I had section 15 up here religion just like sexual orientation is one of the protected grounds under section 15 and so you're absolutely right that another way of thinking about this is when the state or when a state created decision making body like the barrister society refuses to allow somebody to to practice or to article because of an expression of their religious faith the application seems to be you can believe this but don't just state it openly that also brings in as I said earlier huge freedom of expression issues but yes that it is it would be state discrimination against that individual on the basis of religion I agree completely yeah Baird I think Shaw himself in the foot from the get go acknowledges that they leave anybody from to be to a law session discredit I think there because they've already acknowledged them as being completely competent how to shoot themselves in the foot do you think that sends that language there could be arguments to be made that a recognition that a legal training a microcosm that does not involve voices that aren't even Christian especially instructors there may be arguments around there to say that maybe they won't be as competent as someone that would even allow access to instructors and fellow students that come from different backgrounds so that in fact Trinity Western is not as capable of producing students well trained in human rights inequality rights and so on I again I come back to you need evidence on that you cannot I don't see any way how you can just make perspective claims speculative claims if it's up and it's running and you see how those courses are being taught and you see what's being taught in them and so on fine then maybe you'll have some evidence but the idea that you just sort of damn a school without any evidence when it's not as though they woke up one morning and said a law school be fun and said the federation said that would be lovely there's years of debate and discussion and study and renown you know lawyers and legal academics looking at these issues and looking at what's proposed to be taught and so on that's not to say the federation could never be wrong but it's not like a lot of this isn't just you know kind of heads or tails I wonder if they can teach stuff properly right so I think you know if you're going to actually make which is a very large claim that that human rights and so on can't be taught properly in that context you got to wait for the evidence to be there for us yeah so we're going to say that the teacher at TWU unless we think there's something magical about the signing of that covenant if we're going to say the teacher at TWU cannot effectively teach human rights and equality rights are we saying that no evangelical Christian can be a law prof are we saying that no Christian can be a law prof and I will say there's been some argument to that effect not in the court but to that commentary some suggestion that if you are a person of faith that you will have a greater allegiance to God than to the law and that therefore you are incapable as a person of faith of teaching the law and I kind of think you know I think I've done an okay job at that for the last 20 odd years but you don't think it's impeded me I'm not even evangelical but where do we draw the line and who is not going to be allowed to teach law who is not going to be allowed to talk about these important issues in the classroom and you're absolutely right there are you and sign on that covenant that you're banned from doing this anywhere else or we are really going to have some sort of recursive witch hunt to see whose religious views are sufficiently mainstream that they're going to be allowed to teach in the law school I mean you're not going to be able to get up and say you know there's no such thing as section 15 or something like that I can't even have to teach as well as it is and so again I think that it's very important to think what are we arguing here what are we really trying to ban here the kind of society that we want to create one question here and then one at the back we've used a little bit about the barrister association's argument like so what they're doing I guess it's more of what their action what the purpose of the action is so they want to it's basically a boycott to improve the society because they think they'd be better yet or if they didn't go to school what kind of covenants I think an effort to pressure the trendy western to change their covenant to sort of say if you know there's a bunch of provinces across Canada where your students can't article I think PEI said you can go there but PEI is pretty tiny if there's a bunch of provinces across Canada where your students are not going to be allowed maybe that will pressure you to change the covenant so one of the arguments that's going on is to say if we see a a policy of the university as discriminatory then we can declare that a student from there doesn't have a real law degree and does his Campbell and his decision and picks up and goes really so if you had a law school that raised its tuition high enough that you felt that was discriminatory and borrowed access to poor students like say, Dalhousie, raised its tuition to the point where it wasn't easily accessed by poor students according to the Nova Scotia Barrister Society it would have the authority to wake up the day after the tuition hike and go no a degree from law, a law degree from Dal doesn't count anymore so that was the argument I just don't understand why in that case they why invoke the Charter because it's not the question of the Dal because if it was the school wouldn't be allowed to it's a question, you know what I mean sorry why did who invoke the Charter the Barrister Society? they invoke the Charter and their argument is to one they think that it would be good to give those people licenses it's very much grounded in equality rights but both I think both human rights and sort of Charter concepts of other quality it's only invoke the Charter it was a case of whether they were doing something for you or not which isn't the issue because that would be dealt already by the courts in Canada not do you know what I mean? Does that make sense? well I think that the position was we're actually upholding those kinds of values that are enshrined both in human rights legislation and I didn't talk about human rights legislation because I only had so much time but enshrined in human rights legislation and in the equality provisions of the Charter so like we're doing a good thing so they're implying that the justice system at large is not doing what they should do which is shut down the school well as I said I think that there really was trying to pressure the law school and also I mean certainly and here I'm sort of reflecting on what Justice Campbell had to say I wasn't there to hear the argument so though some people in this room were that what they were in effect trying to do was apply the Charter to a body to say oh bad TWU they're not living up to the Charter well TWU doesn't have to live up to the Charter TWU is not the state so maybe trying to take an expansive view of the application of the Charter that's what I was wondering what we were doing so you had a question and you had a question and what more do you do yes this is built somewhat off the past few questions but do you think this is the end of the road like in the interest of looking at this from both sides do you think that's the same decision and go okay it's a little bit there it's a little bit there it's a really big there so far I mean I'm getting the impression that a lot of strong points but whether negative ones were dealing or is this sort of a nail in the coffin I absolutely think that Justice Campbell came to the right conclusion I think he applied the correct principles of law and he applied them correctly however the fact that Diane again thinks that Justice Campbell came to the right opinion is fairly irrelevant as to the question as to whether this is the end of the road probably not I mean TWU I assume challenge in the other jurisdictions that have taken the same stance as the Nova Scotia Barris to society the Nova Scotia Barris to society you know can decide about appealing and just thinking about the different provinces the interesting thing here is that when Barris to society makes a decision if that's challenged in the court the question that the court has to ask itself is not did the Barris to society make the correct choice it has to say did the Barris to society make the reasonable choice and I suppose there is the possibility not a happy thought but we could have a patchwork we could have a patchwork across Canada where you know one province says you can come in an article and then that's challenged the quality point of view and that's found to be unreasonable I mean I don't think this is going to happen but because the test is reasonable it's not correctness there's the possibility of having a bit of a patchwork of decisions across the country I think it's reasonable very much on the side that Justice Campbell took but whether this is the last word in the subject I rather doubt it but I don't know it's not going to be the last word in terms of debate I mean in terms of in court cases yes you had a question and I think what you come back to there is the idea that as professionals we are bound by professional code of conduct and should be disciplined if we don't live up to it and so certainly homophobic behavior of a lawyer toward a client should be disciplined I'm a big fan of homophobic behavior of a lawyer toward a client should be disciplined I'm a big fan of that idea but I think what you're saying is we cannot make the assumption that because someone holds a particular religious view about marriage they will treat their client or anybody else in a homophobic fashion and that was the kind of evidence that the Supreme Court of Canada said they wanted in the earlier TWU litigation and wasn't provided actually if you look at the North Socialist Society statements they haven't broken down they actually mentioned they accept a man and a woman in any type of background walk of life so the thing is whether I'm a TWU graduate or not that really shouldn't matter and I guess it comes down to saying is it in the public interest to say that students who have graduated from TWU cannot practice law and I would say no it's not in the public interest David you had a question okay yes if you said earlier in the lecture that other universities in the U.S. had similar covenants why is it that in Canada this gained so much traction is it because in the U.S. there isn't the same right to practice LGBTQ students or more of the reasons than there may be many and I don't know I actually haven't followed what's happening in the state so I don't even know how much outcry or lack thereof it may just simply be history if you set up a law school 50 years ago and had a coven like this probably nobody that it and I because we've moved so dramatically from what our dominant norms are set up a law school like that in this day and age and boy oh boy people will notice so I think that's a significant aspect too I'm American jump right in as far as I understand Canada doesn't have a lot of private universities at all and they're way more common in the states I know lots of people go to private universities there are secular private universities and religious ones a good example but I can think of right now doesn't necessarily so basically Liberty University is a community university in Virginia where I'm from they're private and they're Christian and they had like a democratic students society or democrat not democratic like the political party and they were told that they couldn't like I guess when it started out to like be a club and like function under the school but then they told them later on that they couldn't because that was when the democratic party started like advocating for same sex marriage to be legalized and so then the school told them that they wouldn't be allowed like they could stop the kids from eating but like they couldn't stop like allowing them to be an official school club so like that's an example of what happened in the states but since we have to be private universities I think that's why you guys don't have a lot so when it just happens a very different history and very different timing and so on yeah thank you I think we're almost done but Elizabeth how about two of the quickest comments because I saw two last hands I think Aaron you had your hand up yeah talk about how a lot of the charter doesn't apply to treaty western universities what about the British Army human rights statute though and that if you're someone's effective it means not to be an effective person are there any privileges for these services well there's a couple of answers to that first of all different provinces have different provisions that allow religious or religious based organizations to have some protection from the provisions of the Human Rights Act I'm not sure what the provision is in British Columbia except that Justice Campbell very emphatically stated in his decision that this was not a violation of this has never been found to be a violation of the British Columbia Human Rights Act I would suggest though even in those provinces that don't have particularly fulsome exemptions for religious organizations you might still be able to make an argument that this is not a violation of the Human Rights Act I haven't thought this through a whole lot of some have just been sort of turning my mind to a little bit of late I've been thinking much more about the charter arguments but basically human rights legislation which does apply more broadly in the charter says that you can't in various ways including the provision of services discriminate against anyone on various grounds including sexual orientation however you can discriminate on protected grounds which include race and gender and this and that and everything else if you can show that there's a bona fide a good faith reason for doing so and while not absolutely parallel there is a human rights case in which a Mennonite college was found to be justified in firing their payroll clerk when they found out that she was Mormon because they said that it is an important part of the denominational character of that school for all employees there were part of the spiritual education of the kids not just the teachers and therefore it was a bona fide occupational requirement that all employees of the school be Mennonite and so it seems to me that some of those same arguments might be made but I'm not sure I spent way less time thinking about the human rights of that sort of tangential I'll think about that after I finish writing with the charter stuff I think I saw one last comment and very very quick and then I'm going to end okay okay and I'd like to say I think we are at an end even five minutes over so thank you so much everybody