Canada's Supreme Court: Provinces Can Refuse Law School Accreditation Over LGBTQ Rights

In a pair of decisions today, the Supreme Court of Canada held that the bodies controlling the legal profession in British Columbia and Ontario can, without violating Canada's Charter of Rights and Freedoms, refuse to accredit Trinity Western University's proposed new law school.  At issue in Law Society of British Columbia v. Trinity Western University and in Trinity Western University v. Law Society of Upper Canada, (Sup. Ct. Canada, June 15, 2018), is the requirement by Trinity Western, an evangelical Christian university, that its students and faculty abide by a religiously-based code of conduct.  The so-called Community Covenant Agreement prohibits "sexual intimacy that violates the sacredness of marriage between a man and a woman."  In 7-2 decisions, the court concluded that the decision to refuse accreditation significantly advances the objective of maintaining equal access to and diversity in the legal profession and prevents the risk of significant harm to LGBTQ people.  In British Columbia decision, the court added:

The public confidence in the administration of justice could be undermined by the LSBC’s decision to approve a law school that forces some to deny a crucial component of their identity in the most  private and personal of spaces for three years in order to receive a legal education.

In the Ontario decision, the court said in part:

The LSUC’s decision means that TWU’s community members cannot impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm. The LSUC chose an interpretation of the public interest which mandates access to law schools based on merit and diversity, rather than exclusionary religious practices.

CBC News reports on the decision.

Canada's Supreme Court: No Right To Fairness Review of Church Tribunal Decision

In Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses v. Wall, (Can. Sup. Ct., May 31, 2018), Canada's Supreme Court rejected a challenge by a Jehovah's Witness that the church's Judicial Committee breached principles of natural justice and its duty of fairness in disfellowshipping him for sinful behavior.  He argued that the disfellowshipping caused other Jehovah's Witnesses to refuse to become clients of his real estate business. The court held:

[T]here is no free standing right to procedural fairness with respect to decisions taken by voluntary associations. Jurisdiction cannot be established on the sole basis that there is an alleged breach of natural justice or that the complainant has exhausted the organization’s internal processes. Jurisdiction depends on the presence of a legal right which a party seeks to have vindicated. Only where this is so can the courts consider an association’s adherence to its own procedures and (in certain circumstances) the fairness of those procedures.

The court also held that the issue is not justiciable, saying that "courts will not consider the merits of a religious tenet".  A press release by the court summarizes the decision. [Thanks to Nima Nematollahi for the lead.]

Canada's House of Commons Calls on Pope and Church To Respond To Residential Schools Settlement

On Tuesday, Canada's House of Commons by a vote of 269-10 called on the Catholic Church and Pope Francis to respond to recommendations in the 2015 Report of Canada's Truth and Reconciliation Commission.  The Commission was created as part of a settlement of lawsuits exposing abuses by the Residential School System which had operated for decades in Canada and had separated Aboriginal children from their families. CTV News reports on this week's action in Parliament:

Among the 94 calls to action by the Truth and Reconciliation Commission was a request for an apology -- to be delivered in Canada by the pontiff himself -- for the church's role in the residential school abuse of First Nations, Inuit and Metis children. An estimated 150,000 of children were forced to attend the schools, many of which were operated by the Roman Catholic Church.

But in March, the Canadian Conference of Catholic Bishops said that while the Pope acknowledged the commission's findings and expressed regret for past wrongs, he "felt he could not personally respond."

The Pope's decision pushed NDP MPs to launch the motion soon after, which also calls on the Catholic Church to pay money owed to residential school survivors and to turn over relevant documentation regarding the government-sponsored schools.

The House of Commons Journals for May 1 sets out the full text of the Motion and details of those voting on it [scroll down].

Suit Challenges Canada's Denial of Grants to Pro-Life Group

In Canada last week, a pro-life group filed suit in Federal Court in Alberta challenging new rules that bar it from receiving grants under the Canada Summer Jobs Program.  According to Life Site News report on the lawsuit, Canada Summer Jobs provides grants to non-profit groups, small businesses, and public sector employers in order to create jobs for students between 15 an 30 years old.  The complaint (full text) in Right to Life Association of Toronto and Area v. Canada (Minister of Employment, Workforce and Labour), (Fed. Ct., filed 1/4/2018), contends that the grant restrictions infringe plaintiffs' freedom of religion, conscience and belief, as well as their equal protection rights, under Sections 2(a)-(b) and 15 of the Canadian Charter of Rights and Freedoms. Last December, Canada's Employment Ministry added a requirement that in order to receive a grant under the program, an organization had to attest to the following:

Both the job and the organization's core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights.  These include reproductive rights, and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation, or gender identity or expression.

Canada Reports 2016 Hate Crime Statistics

Earlier this week, Statistics Canada released its report on Police-Reported Hate Crimes 2016, saying in part:

Police reported 460 hate crimes targeting religious groups in 2016, 9 fewer than in the previous year. These accounted for one-third of all hate crimes in Canada.

Following a notable increase in hate crimes against the Muslim population in 2015, police reported 20 fewer in 2016 for a total of 139. The decrease in police-reported hate crimes against Muslims was the result of fewer reported incidents in Quebec (-16), Alberta (-8) and Ontario (-6).

Similarly, after an increase in 2015, hate crimes against Catholics also decreased, from 55 to 27 in 2016. Ontario reported 16 fewer incidents, and declines were also seen in Quebec (-7) and the Atlantic provinces (-5).

In contrast, hate crimes against the Jewish population grew from 178 to 221 incidents. Increases were seen in Ontario (+31), Quebec (+11) and Manitoba (+7).

Canadian Christian Couple Sues Over Alberta's Policy On Adoptions

In a lawsuit filed in Canada at the beginning of this month, an Evangelical Christian couple is challenging a decision by the Province of Alberta's Child and Family Services to refuse to approve them to adopt a child.  the refusal stemmed from the couple's Biblical views on marriage, sexuality and gender.  The complaint (full text) in C.D and N.D. v. Province of Alberta, (Q.B. AL, filed 11/1/2017), says that "Child and Family Services considered the Applicants' religious beliefs regarding sexuality a 'rejection' of children with LGBT sexual identities...."  It contends that the decision violates their rights under Canada's Charter of Rights and Freedoms. The Justice Centre for Constitutional Freedoms issued a press release announcing the filing of the lawsuit.

Suit Challenges Quebec's New Anti-Niqab Law

As announced by the Canadian Civil Liberties Association, a suit was filed in a Quebec Superior Court yesterday challenging the constitutionality of Sec. 10 of Quebec's recently enacted Religious Neutrality Law (see prior posting).  The law provides that public sector employees in carrying out their functions may not cover their faces, and that private citizens must have their faces uncovered when receiving public services.  The complaint (full text) in National Council of Canadian Muslims v. Attorney General of Quebec, (Que. Super., filed 11/7/2017) contends that Sec. 10 of the violates freedom of religion and equality protections of the Quebec and Canadian Charters of Rights and Freedoms.  It asserts that the Act's requirement particularly impacts Muslim women.

Canada's Supreme Court Hears Arguments In Ecclesiastical Abstention Case

On Nov. 2, the Supreme Court of Canada heard oral argument (video of full oral arguments) in Judicial Committee of the Highwood Congregation of Jehovah's Witnesses v. Wall.  Links to the briefs of the parties and a number of intervenors are also available online.  ReligiousLiberty.tv reports on the case.  In the case, the Alberta Court of Appeals in a 2-1 decision held that Canadian civil courts have jurisdiction to review a formal decision by a Jehovah's Witness congregation to disfellowship one of its members. (See prior posting.)  [Thanks to Michael Peabody for the lead.]

Canada's Supreme Court Rejects Aboriginal Tribe's Religious Objection To Ski Resort

In Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), (Sup. Ct. Canada, Nov. 2, 2017), the Supreme Court of Canada rejected a claim by the aboriginal Ktunaxa Nation that government approval for the development of a ski resort on land they considered sacred would violate their constitutional right to freedom of religion under Section 2(a) of Canada's Charter of Rights and Freedoms as well as their Aboriginal treaty rights under Section 35 of the Constitution Act.  Chief Justice McLachlin, writing for 7 Justices held (as summarized by the court):

... the Ktunaxa are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it. Rather, they seek to protect the presence of Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it. This is a novel claim that would extend s. 2(a) beyond its scope and would put deeply held personal beliefs under judicial scrutiny. The state’s duty under s. 2(a) is not to protect the object of beliefs or the spiritual focal point of worship, such as Grizzly Bear Spirit. Rather, the state’s duty is to protect everyone’s freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination.

Justice Moldaver, writing for 2 Justices, found a substantial interference with religious beliefs, but concluded that it was justified as a proportionate balancing between the Ktunaxa’s s. 2(a) Charter right and the Minister’s statutory objectives. The court summarized their conclusion as to infringement of religious liberty:

... the Ktunaxa sincerely believe that Grizzly Bear Spirit inhabits Qat’muk, a body of sacred land in their religion, and that the Minister’s decision to approve the ski resort would sever their connection to Qat’muk and to Grizzly Bear Spirit. As a result, the Ktunaxa would no longer receive spiritual guidance and assistance from Grizzly Bear Spirit. Their religious beliefs in Grizzly Bear Spirit would become entirely devoid of religious significance, and accordingly, their prayers, ceremonies, and rituals associated with Grizzly Bear Spirit would become nothing more than empty words and hollow gestures. Moreover, without their spiritual connection to Qat’muk and to Grizzly Bear Spirit, the Ktunaxa would be unable to pass on their beliefs and practices to future generations. 

Lawyer's Daily has a lengthy report on the decision.

Orthodox Jews In Canada Challenge Brain Death As End-of-Life Test

According to the National Post, in the Canadian city of Toronto an Orthodox Jewish family has filed suit claiming that under the Charter of Rights and Freedoms they should be able to require a hospital to continue to treat their 25-year old son who was declared brain dead.  The family says that their religious beliefs reject the concept of brain death in favor of the end of heart beat as the test.  The court ordered the patent to temporarily be kept on life support while the case is pending.

First Canadian Prosecution For Selling Mislabeled Kosher Food

The Canadian Food Inspection Agency last week announced that it has successfully prosecuted the first case brought before a provincial court involving misrepresentation of a kosher food product. Section B.01.049 of the Food and Drug Regulations prohibits selling food that does not meet the kashruth requirements applicable to it.  On June 22, Creation Foods Company plead guilty to two counts of violating the Food and Drugs Act, and was fined $25,000. Using a forged kosher certificate, the company sold cheese that did not meet requirements of kashrut to two Jewish summer overnight camps for young people.  The Forward has more details on the case.

Canada's Parliament Adds Transgender Protections To Discrimination and Hate Crime Laws

Canada's Parliament last week gave final passage to Bill C-16 (full text). The bill adds "gender identity or expression" to Canada's Human Rights Act and to the Hate Propaganda provision of Canada's Criminal code.  The bill comes into force when it receives Royal Consent.  Christian Post reports on the bill and responses to it.  Canada's Justice Minister says:

The purpose of this legislation is to ensure that everyone can live according to their gender identity and express their gender as they choose. It will protect people from discrimination, hate propaganda and hate crimes.

A spokesman for Canada's Campaign Life Coalition, however, contends:

Mark my words, this law will not be used as some sort of 'shield' to defend vulnerable transsexuals, but rather as a weapon with which to bludgeon people of faith and free-thinking Canadians who refuse to deny truth.

Hate Crimes In Canada Up In 2015

Statistics Canada yesterday released data on Police Reported Hate Crimes, 2015. According to the release from the government statistical agency:

Hate crimes rose by 5% in Canada in 2015, largely due to an increase in incidents targeting certain religious and ethno-cultural groups, specifically the Muslim population and Arabs or West Asians. For the year, police reported 1,362 criminal incidents that were motivated by hate in Canada, 67 more than the previous year....

Police-reported hate crimes targeting the Muslim population increased from 99 incidents in 2014 to 159 incidents in 2015, an increase of 61%. At the same time, the number of police-reported crimes targeting the Jewish population declined from 213 in 2014 to 178 in 2015. Hate crimes targeting the Jewish population accounted for 13% of all hate crimes, followed closely by hate crimes targeting the Muslim population (12%).

Canadian Provinces May Not Fund Non-Catholic Students In Catholic Schools

Canada's Constitution Act of 1867 (Sec. 93) guarantees Catholics and Protestants in the three Canadian provinces of Alberta, Saskatchewan and Ontario the right to petition the provincial government to create a separate denominational school for them when they comprise a minority in a school attendance area. In Good Spirit School Division No. 204 v. Christ the Teacher Roman Catholic Separate School Division No. 212, (QB Sask., April 20, 2017), a Saskatchewan trial court in a 230-page opinion held that it is a violation of Canada's Charter of Rights and Freedoms for the provincial government to provide funding for non-Catholic students at government-supported Catholic schools.  The court held that Catholic separate schools have no constitutional right to receive funding for non-Catholic students and that it violates the province's duty of religious neutrality, as well as guarantees of equality, to fund non-minority faith students in denominational schools.  Global News reports on the decision.

Canada's Supreme Court Will Review Two Trinity Western Law School Cases

On Feb. 23, the Supreme Court of Canada agreed to hear appeals in Trinity Western University v. Law Society of Upper Canada (Ontario) (summary of case) and Law Society of British Columbia v. Trinity Western University, et. al. (British Columbia) (summary of case). At issue is the question of whether the Law Societies in various provinces can refuse to accredit Trinity Western University Law School because of its code of conduct based on evangelical Christian teachings.  In particular, the law school refuses to recognize same-sex marriages and requires students to sign its Community Covenant that, among other things, prohibits sexual intimacy outside of a marriage between one man and one woman. TaxProf Blog has more on the Supreme Court's action. [Thanks to Steven H. Sholk for the lead.]

Canadian Court Convicts 2 FLDS Members For Bringing Daughter To US To Marry Church Leader

As reported by the Toronto Sun, a British Columbia (Canada) trial court has found that FLDS member Brandon James Blackmore, assisted by Gail Blackmore, transported the couple's 13-year old daughter from Canada to the United States to facilitate her marriage to Warren Steed Jeffs, then the Prophet and President of the FLDS Church. In Regina v. Blackmore, (BC Sup. Ct., Feb. 3, 2017), the court after making extensive findings concluded that the two are guilty, but acquitted a third defendant-- James Oler-- on charges relating to his daughter.

Canadian Court Refuses Parent's Religious Accommodation Request

In E.T. v. Hamilton-Wentworth District School Board, (ON Super. Ct. Jus., Nov. 23, 2016), an Ontario (Canada) trial court rejected an attempt by the father of two elementary school students to require his children's school to notify him in advance of specific curriculum areas being taught to his children so he could withdraw them from classes, lessons or activities that conflict with his Greek Orthodox religious beliefs.  The father contended that he has an obligation to protect his children from "false teachings," including moral relativism and issues surrounding human sexuality. While the school had a religious accommodation guideline and the parent had shown a sincere religious belief as to matters of marriage and sexuality that are inconsistent with the school's curriculum, the court upheld the school's refusal to grant his requested accommodation, saying in part:

Accommodation by non-attendance, which is sought by the applicant, would allow him to isolate his children from aspects of the curriculum that in his religious belief would amount to "false teachings". However isolation is antithetical to the competing legislative mandate and Charter values favoring inclusivity, equality and multiculturalism.

LifeSite News reports on the decision. 

In Canada, Gay Activists Sue Christian Group That Infiltrated Pride Parade

Last month in Canada, two LGBT activists filed a class action lawsuit against a group of Christian conservatives who, calling themselves the "Gay Zombies Cannabis Consumers Association," registered under false pretenses to march in the 2016 Toronto Pride Parade.  According to the complaint (full text) in Hudspeth v. Whatcott, (Ont. Super. Ct., filed 8/11/2016), the Gay Zombies, wearing green costumes that disguised their identities, handed out 3000 flyers showing graphic pictures of sexually transmitted diseases and vilifying homosexuality.  Alleging civil conspiracy, intentional infliction of mental distress, and defamation, the suit seeks an injunction to bar defendants from future participation in or attendance at the Toronto Pride Parade; an order barring them from further distribution of the offensive flyers; and damages totaling $103 million (Canadian). Daily Xtra (Aug. 12) reported on the lawsuit.

Canadian Mounties Approve Hijab As Optional Uniform Choice

Global News reported this week that the Royal Canadian Mounted Police has approved the hijab as a uniform option to encourage Muslim women to consider the RCMP as a career option.  Three types of hijabs were tested before approving one which maximizes officer safety and can be removed quickly if needed. The RCMP since 1990 has allowed Sikh officers to wear a turban. [Thanks to Scott Mange for the lead.]

Canada Denies Entry To U.S. Mohel

Canadian border officials last month refused entry into Canada to a Detroit-based mohel who was crossing into neighboring Windsor in order to perform a Jewish ritual circumcision for a family in Windsor.  According to a June 8 report by the Detroit Jewish News, Dr. Craig Singer (a physician, as well as a mohel certified by Hebrew Union College) was told by border officials that he would need a permit as a temporary foreign worker, and that he could be prosecuted for performing a surgical procedure in Canada without proper authorization. Canada's Immigration and Refugee Protection Regulations, Paragraph 186(l) provide that a foreign national may work in Canada without a work permit "as a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling."  Enforcement guidelines provide:

Persons seeking entry under the authority of R186(l) should be able to provide documentation to support their request for entry that addresses: the genuineness of the offer of employment of the religious denomination that seeks to employ them; and their ability to minister to a congregation under the auspices of that religious denomination.