Distilling our Rights

By Pouya Dabiran

There I was, sitting at my first panel at the 2018 annual national human rights conference, organized each year by one of the human rights commissions across the country. I was eagerly listening to learn from esteemed professionals, academics, and leaders in human rights work. In the course of the panel presentation, one of the conference speakers made a joke which the entire room seemed to laugh at in agreement. I was struck by how readily accepted this joke was, and how universally accepted it seemed to be by everyone in the room. The speaker had remarked [paraphrased] that if an action is being taken which bothers the evangelical Christian community, you can be assured that the action is right, or just. For the purposes of this blog, I won’t disclose who the speaker was or in which panel this took place. I was shaken, confused, and almost angry by the inflammatory remark thrown against a religious institution and people. At the end of the presentation, I didn’t discuss this incident with anyone, and took on my other duties as normal.

Approximately two weeks prior, the SCC had released Law Society of British Columbia v. Trinity Western University and Trinity Western University v. Law Society of Upper Canada. Both cases were the final judgement rendered on a long list of cases and appeals from multiple jurisdictions on Trinity Western University’s controversial plans to open a law school with a mandatory covenant in place, which (among other things), prohibited “sexual intimacy that violates the sacredness of marriage between a man and a woman”.

This blog will consist of a short opinion on the judgements of the majority, and Chief Justice (at the time) McLachlan’s concurring but separate judgement on the LSBC v TWU case. This blog will focus on this case, and my own experiences at the Commission with human rights.

Both the majority decision and Chief Justice McLachlan’s found that the Law Society of British Columbia engaged the members of the TWU community’s S. 2(b) rights to religion under the Charter [paras 60-75; para 120]. Both decisions found that the LSBC, under their mandate to protect the public interest, acted properly in considering equality concerns to protect the rights and freedoms of all persons pursuant to this jurisdiction [para 93; 142]. Both decisions also found that the decision proportionately balanced the statutory mandate with which the LSBC is tasked with, with the implicated charter right [para 105; para 108].

The primary difference between the decisions seemed to center around the impact the decision had on the infringed religious rights in question. The majority decision considered the impact on the religious rights engaged to not be severe [para. 85]. The decision explained, saying the interference with the right was limited to preventing prospective students from studying law at TWU with a mandatory covenant. The impact of this was then taken to be minimal, since the court found that this was merely a preference, not a necessary requirement, of the sincerely held religious beliefs of the TWU community. The majority considered comments by TWU’s own affiliates when coming to this conclusion. The majority then compared this to prior rulings on sincerely held religious beliefs, such as Multani, to indicate its apparent minor significance.

The majority then shifted the analysis to the impact on the LGBTQ community, correctly noting that the LSBC’s decision promoted the public interest by preserving rights and freedoms – by preventing considerable harm towards LGBTQ people who would attend TWU’s proposed law school. The majority decision looked at potential LGBTQ law students at TWU potentially suffering harm to their dignity and self-worth, confidence and self-esteem, and experiencing stigmatization and isolation [para 97].

In reaching their decision, the majority noted that there can be no compromise between the extremes [para 84]. The parties had both deemed the existence, and non-existence, of the mandatory covenant to be non-negotiable. The majority concluded their balancing exercise by holding that the denial of the proposed law school did not constitute a significant limitation on the religious rights of the TWU community. Interestingly enough, in the same paragraph, the court concluded that “no evangelical Christian (as a result of this decision) is denied the right to practice his or her religion as and where they choose” [para 102]. I will discuss the significance of this language later in the blog.

The decision by the Chief Justice contrasted from the majority primarily through determining a greater impact on the religious right. The Chief Justice gave due consideration to the fact that the religious right in question included within it, in these circumstances, the right of expression and association as well [para 122]. The Chief Justice, like the majority, noted that a separate analysis is not necessary for each right in this instance because of how the right could be framed, but that each right should be considered to fall within the gambit of the religious right.

While this may seem unimportant, noting this more properly characterizes not only the right itself, but also the impact of the right on the people the decision affects. A decision maker would more readily deem of minor significance a right to practice religion, than a right to express one’s religion through a medium (in this case, the mandatory covenant) in an association (the TWU community). Looking back at the majority conclusion of the balancing exercise, the final sentence of paragraph 102 stated “no evangelical Christian is denied the right to practice his or her religion as and where they choose”. However, if the right is properly framed to include within its gambit the right to expression, and association, it is uncertain whether at least some evangelical Christians would be denied that right, since they may consider the uniformity of the community in some aspects (such as adhering to the covenant) a sincerely held part of their religious belief.

In fact, In the majority’s own decision, they express that religion, both generally and specific to the evangelical Christian religion, is both individual and “profoundly communitarian” [para 64]. To conclude that the majority decision denies no evangelical Christian the right to practice his or her religion as and where they choose seems to contradict the majority’s own words on the matter just a number of paragraphs before.

I do not believe the majority intended to marginalize the associative and expressive aspects of the right to religion in this case. I believe this case shows the difficulty of analyzing, balancing, and enforcing human rights when they attach to a community, as opposed to an individual, since Canada’s (and the United Nation’s) conception of these rights is largely conceived of as individualistic. It could be said that the Chief Justice’s inclusion of the right to associate within the right to religion resulted in the infringement being considered more impactful, and the majority’s exclusion led to the opposite. Of course, this is conjecture.

Ultimately, both the majority and Chief Justice found that the decision by the LSBC was a reasonable one. However, the description of the rights and language of the judgement may have an impact on whether claimants bring forward future claims in the court. If future claimants who believe they have had their religious rights infringed perceive the nation’s court system as marginalizing their rights, they would be less likely to bring a costly and time-consuming action in the court system. Further, it has the potential, and negative, impact of marginalizing the impact on the rights of the LGBTQ community to equality. If lower courts are faced with a situation which seems to hold a “more serious” violation of religious rights, that also clashes with equality rights, they may [relative to this decision] find that the religious right ought to prevail. I believe the Chief Justice’s decision did a better job of distilling the true impact on the conflicting rights at issue in this case, and that her decision would better guide lower courts in the future.

More broadly and related to my experience at the Yukon Human Rights Commission – I found that the proper description of rights and the impact of any infringements of those rights are critical to the protection and enforcement of human rights. In this exercise, I believe political preferences can play a role. Eliminating our biases is no easy task. A seemingly obvious solution is remaining concretely embedded in the facts, and always keeping in mind the complainant and respondent(s), rather than an abstract notion of a right that is attached to a complainant. It also seems to help to gather and maintain, throughout court or tribunal procedures, a robust factual matrix for reference. There is a tension in doing so however, since the gathering, organizing, and continual reference to such a matrix drains valuable resources and time. To put it succinctly, if every right is ensured to be fully protected, but only by lengthening the already lengthy and expensive tribunal/court procedures, then fewer claimants would come forward.

In my last week at the Commission, I was mostly handing off my open files to my colleagues. I remember handing off a potential complaint which had been written and undergone through several edits already to my colleague and having a discussion over the length of the complaint. My colleague said they preferred to have each potential complaint distilled into a short and concise document which outlined the relevance of the potential complaints to the necessary requirements of a human rights complaint under the Yukon Human Rights Act. Of course, if the complaint were to be accepted, it would undergo a robust investigation and culminate in a carefully scrutinized discussion at a disposition hearing in deciding whether it should go to hearing or not. However, even before this, the Director of Human Rights considers the complaint for approval. I disagreed with my colleague that at this stage, the factual matrix is not important enough to warrant even a somewhat robust record for the Director to consider. Facts can be diluted to the point where the focus is on whether the scenario “checks off boxes” necessary for a human rights complaint. However, in doing so, we are vulgarizing the very real event which transpired, and therefore changing the narrative of the complaint. This in turn distances us from the impact the violation (allegedly) had on the complainant.

My colleague was not convinced, and neither was I. However, I don’t claim to know the right answer, or that there even is one. The only conclusion I can take is that a good advocate of justice – whether in an advocacy position, or neutral position – must stay vigilant and aware  of this tension, and seek to balance the scales of access to justice, and the proper distillation of our rights.

My time in the Yukon was a special one, not only because of my experiences at the Commission, but also because of the wonderful people I met during my time there. I hope to visit again soon – hopefully in the winter so I can explore on snow shoes and see the northern lights. I have learned tremendously from the experience, and look forward to bringing these stories back into my education at the Faculty of Law at McGill.

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