The Threat of Creeping Charterism

Far-right American groups tout the threat of “creeping sharia.” Comparable groups in Canada appear to be warning of a threat of a different kind, of the influence of the Charter in Canadian society.

If this seems puzzling, you’re not alone. The Charter is part of the Canadian constitution, arguably the most important legal document in our entire system. And yet, it becomes a convenient scapegoat when courts make decisions that some aspects of society disagree with.

What I’m talking about is Prof. Bruce Pardy, who criticized the Court’s decision in Trinity Western University v. Law Society of Upper Canada. He states in his National Post column,

The Charter was conceived and drafted as a roster of individual negative rights that protected against interference from an overbearing state. Charter values, as articulated by the court, are collectivist values of progressives: (substantive) equality, (social) justice and (group) dignity. Charter values are decidedly not the individual liberty values of classical liberals or the traditionalist virtues of conservatives.

Never mind that that the Charter was drafted by a progressive legislature. Original intent is conveniently overlooked when it doesn’t fit a cultural narrative.What’s even more bizarre is Pardy’s characterization of the living tree doctrine,

For years, the Supreme Court has insisted that the Canadian Constitution is a “living tree” that may be adapted to changing social circumstances. Using Charter values, the court has taken the project to a new level. The Trinity Western case is the most recent Supreme Court decision to slowly but surely transform the Charter from a roster of liberty rights to a regime of undefined, collectivist values. The court is doing so on its own initiative, without an amending formula, without legislative direction and without a vote from the people. It is nothing less than a slow-motion constitutional coup. And that’s no joke.

The living tree doctrine precedes the Charter by over half a century, and was described in Edwards v. Canada as follows:

The B.Ν.A. Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada.

“Like all written constitutions it has been subject to development through usage and convention:” (Canadian Constitutional Studies, Sir Robert Borden, 1922, p. 55) .

…

The Privy Council, indeed, has laid down that Courts of law must treat the provisions of this (British North America) Act by the same methods of construction and exposition which they apply to other statutes. But there are statutes and statutes; and the strict construction deemed proper in the case, for example, of a penal or taxing statute or one passed to regulate the affairs of an English parish, would be often subversive of parliament’s real intent if applied to an Act passed to ensure the peace, order and good government of a British colony :” Clement ‘s Canadian Constitution, 3rd ed., p. 347

Peter Hogg described a parallel approach towards early Charter interpretation in 1990 in the Osgoode Hall Law Journal, with a broader scope and a more relaxed standard of justification under s. 1, and a more purposive approach with a more stringent justification.

Similarly, aspects of the Charter intended to prevent against discrimination are also intended to be provided “a broad and liberal” (sic) construction. In Hunter et al. v. Southam Inc., the Court stated,

The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action.

The governmental action here would be to interfere with the legislative delegated authority and the decisions made by these authorities, not any direct governmental action with Trinity Western itself.

Despite characterizing the Charter as strictly negative values against state interference, Pardy would have once specific Charter right, s. 2(a) freedom of religion and conscience, to allow Trinity Western to compel an independent administrative body to provide automatic accreditation. A similar description was advanced by Margaret Wente in The Globe,

The ruling is being widely portrayed as a victory for LGBTQ rights. It is not. Nobody has the right to do something they couldn’t do yesterday. The ruling is really about the expanding power of administrative law – in this case, the power of the provincial law societies to decide who is fit to be a lawyer and who is not.

…

That’s because this decision is a victory for the ever-expanding power of the administrative state – the human rights tribunals and licensing commission, and other quasi-judicial bodies that play a bigger and bigger role in our lives. The effect of this decision “is to water down our Charter protections” – just the opposite of the intent.

This depiction ignores entirely the real issue in this case, which was the appropriate level of deference entitled to an expert decision maker. Nowhere in the Charter does the constitution confer a right on a private educational institution to receive accreditation by independent administrative bodies.

Reasonable people can disagree over the statutory interpretation of the respective legislative schemes that empower law societies, and debate the scope of authority that the legislature has empowered them. Indeed, the bulk of the distinction between the majority and the dissent hinges on the primary function of the law society under the Law Society Act.

For example, Leonid Sirota relies heavily on the Court’s dissent in the companion decision of Law Society of British Columbia v. Trinity Western University, and states,

What is perhaps an innovation, albeit one that follows the same perverse logic of courts enabling regulators where legislators did not, is allowing the administrative decision-maker to effectively enforce (under the euphemism of “looking to”) laws that it is no part of their statutory mandate to enforce, supposedly because these laws represent “shared values”. The framers of these laws ― both the Charter and the British Columbia Human Rights Act ― made a conscious decision that they would not bind private entities generally, or religious institutions such as Trinity Western specifically, respectively. No matter ― the majority thinks that administrative decision-makers can apply them regardless.

Whether the legislators intended a regulatory scheme to be immune from the Charter is disputed, but I would contend that the constitutional nature of the Charter means that they would be bound by these values regardless.

More importantly, this is not a matter of the Charter constraining the authority of a private entity, but rather whether the administrative decision maker has made legislatively empowered decisions in a Charter-compliant manner. The distinction may be subtle, but it is absolutely essential.

The assumption that Trinity Western is an entirely private entity has also been questioned since the matter appeared before the Court. Saul Templeton, in discussing the parallel case in Nova Scotia, dispels the notion that Trinity Western is completely devoid of any government involvement,

Trinity Western University (“TWU”) claims it is a private religious institution. This is the explanation offered by the courts for denying students, staff and faculty at TWU protection under the Canadian Charter of Rights and Freedoms. This protection is denied even though it is generally accepted, even by supporters of TWU, that TWU’s Community Covenant, “indeed treat[s] LGBT people in a way that would have profoundly negative effects of [sic] their lives.”

What does it mean for a university to be publicly funded? I am a tax scholar, so I offer a definition supported by tax policy. TWU is publicly funded because it receives significant tax benefits as a result of its registered charity status. TWU is tax exempt, and therefore underwritten by public funding. The tax exemption is equivalent to a direct subsidy to TWU, since it represents tax revenue forgone, and governments must make up the shortfall elsewhere. TWU also issues charitable tax receipts that allow (and encourage) donors to give more money to TWU than they otherwise could, since the state gives donors a kickback on their taxes for doing so.

Some advocates before the Court attempted to introduce additional information that Trinity Western actually receives direct governmental funding, but the Court was disinterested in hearing any fresh evidence at that juncture. I’ve commented previously that changes in government funding means that universities, even private ones, are no longer completely Charter immune.

Sirota also comments separately on the freedom of religion aspect, which the dissent described as a lack of state neutrality,

The key to the Charter aspect of the case is that Trinity Western has been denied something that there is no doubt it would have been granted but for the religious belief and practice which it embodies. While some, including both critics and supporters of the Supreme Court’s decision, have suggested that the case should really have been about freedom of association, I think it makes sense to frame as being about the state neutrality aspect of religious liberty.

I’ve noted that the Court’s decision in Loyola would assist this interpretation, but that it would be inconsistent with Ktunaxa Nation. There is no state interference with the ability of Trinity Western to operate a law school as they see fit, in a manner consistent with their religious beliefs. That right does not give rise to an entitlement to automatic accreditation.

Where reasonable disagreements end is where there are accusations that the Court is somehow running roughshod over the individual rights of Canadians by imposing values that aren’t found or derived from the Charter itself. This decision does not depart from previous jurisprudence in administrative law, or weaken any protections of Canadians under the constitution.

Such a characterization is not only misleading, it’s highly irresponsible, especially for those in an academic role at a Canadian law school.