{"id":2596,"date":"2017-11-30T16:25:01","date_gmt":"2017-11-30T16:25:01","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=2596"},"modified":"2018-10-12T17:16:54","modified_gmt":"2018-10-12T17:16:54","slug":"onca-questions-dore-loyola-framework-on-eve-of-twus-scc-hearing","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/onca-questions-dore-loyola-framework-on-eve-of-twus-scc-hearing\/","title":{"rendered":"ONCA questions Dor\u00e9-Loyola framework on eve of TWU’s SCC hearing"},"content":{"rendered":"

Is it \u201cantithetical\u201d to the \u201cCharter <\/em>value\u201d of \u201cinclusivity\u201d to allow a child to be excused from a public school classroom while sexual orientation or gender is being discussed? In this article I review a case that raises this very question.<\/p>\n

Many lawyers today are concerned that \u201cCharter <\/em>values\u201d are being used as a sword for state-enforced moral conformity, when Charter <\/em>rights and freedoms are meant to be a shield to protect individuals and private institutions from government overreach.<\/p>\n

In an earlier article on Gehl v Canada (AG)<\/em><\/a>, I noted that Ontario Court of Appeal Justices Lauwers and Miller raised some important questions about Charter <\/em>values and cautioned against invoking them unnecessarily. Gehl<\/em> was released in April. Just last week, the same two Justices raised further questions about Charter <\/em>values and the Dor\u00e9-Loyola <\/em>framework for Charter <\/em>review.<\/p>\n

\u201c[T]here is no need to determine that \u2018inclusion\u2019 is a Charter <\/em>value, and the application judge erred in doing so,\u201d Justice Lauwers writes in E.T. v Hamilton-Wentworth District School Board<\/a><\/em>.<\/p>\n

 <\/p>\n

Christian father challenges public school\u2019s refusal to accommodate his children<\/strong><\/p>\n

E.T, the appellant in this case, is father of two children who attended public elementary school when his dispute with the Board began. In 2010, E.T. requested that school staff notify him whenever \u201cmoral relativism\u201d, \u201cenvironmental worship\u201d, \u201coccultic principles\u201d, \u201csex education\u201d, or \u201cportrayals of homosexual\/bisexual conduct and relationships and\/or transgenderism as natural, healthy or acceptable\u201d came up in his children\u2019s classes, so he could decide whether to withdraw his children from those classes.<\/p>\n

The principal offered to excuse E.T.\u2019s children from parts of the elementary school curriculum that dealt discretely with \u201csexual health and development\u201d, but refused his request to be given notice whenever one of the items on his list might arise in the classroom.<\/p>\n

E.T. then applied to court for \u201can order that the Board provide him with information, in advance, as to specific curriculum areas being taught to his children, and an order that he be permitted to withdraw the children from certain classes, lessons or activities that conflict with his religious beliefs.\u201d He relied on both freedom of religion under s. 2(a) of the Charter <\/em>and the equality protections of Ontario\u2019s Human Rights Code<\/em>.<\/p>\n

 <\/p>\n

Superior Court applies Dor\u00e9\/Loyola<\/em> to uphold the Board\u2019s decision<\/strong><\/p>\n

At the Superior Court, Justice Reid started his analysis with a brief recap of the two frameworks for applying section 1 of the Charter<\/em>, namely Oakes <\/em>and Dor\u00e9\/Loyola<\/em>. And of course, he found that the latter applied:<\/p>\n

[34] In this case, there is no challenge to any specific legislation, nor is there a request for judicial review. The requested relief is [\u2026] a declaration. The applicant challenges the decision of his children\u2019s school principal, and through her, the Board.<\/p>\n[38] [\u2026] I accept that the basic principle against which the Board\u2019s actions must be measured is as identified by Justice Abella in Loyola<\/em>: ‘[T]he discretionary decision-maker is required to proportionately balance the Charter<\/em> protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that he or she is obliged to pursue.’<\/p><\/blockquote>\n

The respondent Board\u2019s Equity Policy committed it to ensuring that classroom practices are \u201canti-homophobic\u201d and \u201canti-heterosexist\u201d, and that class materials reflect a diversity of sexual orientations. E.T., however, in Justice Reid\u2019s words, \u201cbelieves that same-sex sexual relations are not God\u2019s intention and that there are only two genders, namely male and female.\u201d<\/p>\n

Justice Reid accepted that E.T. had a sincere religious belief that he is obligated to protect his children from what he considers false teaching about gender, sexuality, and sexual ethics. While the respondents argued that E.T. must demonstrate that the school interfered with his ability to pass on his beliefs to his children, Justice Reid said that \u201cit is not the role of the court to go behind his assertion that it is sinful for him to allow his children to be exposed to \u201cfalse teachings\u201d. So an infringement of religious freedom was established, and it was on to the Dor\u00e9<\/em> analysis.<\/p>\n

Justice Reid noted that \u201cthe Board\u2019s Equity Policy [is] designed to raise awareness about issues related to sexual orientation and equity with a view to eliminating stereotyping, prejudice, discrimination, homophobia and violence\u201d and that these objectives are supported by the \u201cCharter <\/em>values\u201d of \u201cequality and multiculturalism\u201d. The Equity Policy also had a \u201creligious accommodation guideline\u201d, which Justice Reid said was also supported by Charter <\/em>values.<\/p>\n

The decision to refuse E.T.\u2019s request was reasonable, Justice Reid concluded. \u201cThe Board\u2019s failure to provide accommodation by way of advance notice to the applicant was, in part, a practical response,\u201d he wrote. The teachers had to teach an \u201cintegrated curriculum\u201d with regard to \u201cequity and inclusivity\u201d, but E.T.\u2019s list of objectionable subject matter was \u201cextensive\u201d and accommodating his request would be \u201cextremely difficult\u201d. So it was a practical decision. That much is obviously true. And of course a judge should account for such practical realities.<\/p>\n

 <\/p>\n

Superior Court and ONCA minority: Charter <\/em>supports mandatory class participation<\/strong><\/p>\n

But then, Justice Reid said something I believe to be directly contrary to the Charter<\/em>. He said that allowing E.T.\u2019s children to leave the classroom when matters of sexuality orientation or gender are taught or discussed \u201cis antithetical to [\u2026] Charter<\/em> values favoring inclusivity, equality and multiculturalism.\u201d He also noted that allowing E.T.\u2019s children to leave \u201ccould create discomfort for those who remain (and possibly for those who are isolated.\u201d<\/p>\n

Reid J. then went on to quote passages from Supreme Court decisions that make the point that some cognitive dissonance is unavoidable in public school. But he makes this point regarding E.T.\u2019s children \u2013 they will have to put up with dissonance between what is taught at home and at school. Yet avoiding cognitive dissonance (\u201cdiscomfort\u201d) for the rest of the class is supposedly a reason to not let E.T.\u2019s children be excused from class. The contradiction seemed lost on Justice Reid, as it was on Justice Sharpe at the Court of Appeal.<\/p>\n

Justice Sharpe, writing separately from Justices Lauwers and Miller in the result, declared: \u201cExempting some students on a regular basis from classroom discussions touching on diversity, inclusivity and acceptance, within a public school program designed to promote precisely those principles, would run a serious risk of endorsing the non-acceptance of students of other family backgrounds, sexual orientations, gender expressions and gender identities.\u201d<\/p>\n

\u00a0<\/strong>This line of argument \u2013 that respecting a person\u2019s (or institution\u2019s) freedom means endorsing the views of that person or institution \u2013 threatens our most fundamental freedoms. If the state allows a Christian or Jewish or Muslim school to operate and grant diplomas, is it thereby endorsing their religious beliefs? Of course not. Nor is the state endorsing your beliefs if you are permitted to leave a classroom. We see the same argument in the Trinity Western University case \u2013 that accepting graduates from TWU\u2019s law school would amount to endorsing the TWU\u2019s beliefs regarding sexual ethics.<\/p>\n

 <\/p>\n

At the ONCA, E.T. loses for lack of evidence, but wins on the law<\/strong><\/p>\n

Thankfully, Justice Lauwers (with Justice Miller concurring), did not endorse this argument. Justices Lauwers and Miller did agree with Justice Sharpe on the outcome of the case, but for evidentiary reasons. There are two ways E.T. could have won, Justice Lauwers explained. First, he could have shown that the purpose of the school\u2019s \u201cinclusivity programming\u201d was to undermine Christian beliefs. However, \u201cThe appellant has put forward no expert evidence that the [program] has such a purpose.\u201d (I\u2019m not sure what such evidence might have added.)<\/p>\n

Second, E.T. could have demonstrated through evidence that the program as implemented \u201cundermined a parent\u2019s ability to transmit religious faith\u201d in effect. He failed on this account as well. Though his children remained in public school for years while his dispute with the Board was ongoing, E.T. put forward \u201cno evidence that his children have experienced negative teacher \u2018value judgments\u2019 of the sort he fears\u201d.<\/p>\n

Justice Lauwers called the Education Act\u2019s mandate to promote inclusion and acceptance and the resulting educational programming \u201can iteration in inculcation\u201d. Further, Justice Lauwers stated, \u201cThe prescribed methods are aimed at securing acceptance of the morality of the Ministry\u2019s concept of inclusion<\/em>\u201d (my emphasis).<\/p>\n

The majority reaffirmed the longstanding principle that \u201cthe right of parents to care for their children and make decisions \u2026 about education is primary, and the state\u2019s authority is secondary to that parental right.\u201d They note that \u201cThe mores contained in the [program] can conflict with parental religious views, particularly if it is premised on the proposition that true acceptance of another person can only be achieved by embracing all of their self-understandings.\u201d They made it clear that E.T.\u2019s loss did not mean that the programming had received \u201ca clean constitutional bill of health\u201d. Rather, \u201cIt would not be hard [\u2026] to imagine a teacher actively using both the force of personality and approved curriculum materials to undermine the faith commitments of students, which could make the provision of accommodation necessary.\u201d<\/p>\n

 <\/p>\n

Further questions raised about Dor\u00e9-Loyola framework<\/strong><\/p>\n

\u00a0<\/strong>Justice Lauwers\u2019 main problems with Dor\u00e9-Loyola<\/em> seem to be that it (1) obscures the priority Charter <\/em>rights have over statutory objectives and (2) potentially reverses the burden under s. 1 of the Charter<\/em>. A\u00a0Charter <\/em>value (like equality or inclusivity) can be attached to many if not most statutory objectives (such as promoting student well-being). So if someone like E.T. makes, say, a freedom of expression claim, can the state simply cancel out the claim by invoking a Charter <\/em>value to counterbalance the Charter <\/em>value the claimant relies on?<\/p>\n

Justice Lauwers began by explaining the\u00a0Oakes <\/em>test: \u201cIn the context of Charter<\/em> rights challenges to statutes, the test from R. v. Oakes<\/em> gives prima facie priority<\/em> to the Charter<\/em> right claim, placing the burden on the state actor to establish, among other things, that the reasons for enacting the impugned statutory provision are sufficiently compelling to justify the limit placed on the right.\u00a0 Charter rights thus have a defeasible priority over statutory objectives.\u201d<\/p>\n

He then contrasted this with Dor\u00e9-Loyola<\/em>, in an important passage:<\/p>\n

[110]\u00a0\u00a0\u00a0 The Dor\u00e9<\/em>\/Loyola<\/em> framework is intended to adapt the s. 1 justificatory methodology to the assessment of potential Charter infringement by decisions of administrative decision makers. I have concerns that this project miscarries in para. 4 of Loyola<\/em>, which both the application judge and my colleague invoke.<\/p>\n[111]\u00a0\u00a0\u00a0 Abella J. states in para. 4 of Loyola<\/em> that, under Dor\u00e9<\/em>, \u201cthe discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that she or he is obliged to pursue.\u201d The language used by Abella J. seems to suggest that the statutory objectives have indefeasible priority over Charter<\/em> rights, contrary to the Oakes<\/em> methodology<\/u>. Perhaps the logic of para. 4 is that if a statutory objective is pressing and substantial (understood in the Oakes<\/em> sense), that would be sufficient to justify the limit of the Charter<\/em> right, irrespective of any countervailing considerations. See Dor\u00e9<\/em>, para.6. I am uncertain. (emphasis added)<\/p><\/blockquote>\n

Justice Lauwers also questioned the application of Dor\u00e9<\/em>, which was an adjudicative decision, to non-adjudicative decisions and to \u201cline officials\u201d or \u201cline decision makers\u201d in particular (such as teachers), who lack Charter <\/em>expertise.<\/p>\n

Does a line official decide that the statutory objective she is relying on is pressing and substantial, and is she qualified to do so? “As I see it,” Lauwers J. explained, “applying the Dor\u00e9\/Loyola<\/em> approach to a line decision maker effectively imports a presumption that the statutory objective on which the decision rests is always \u2018pressing and substantial\u2019. [\u2026] But a presumption would effectively reverse the s. 1\u00a0Charter<\/em>\u00a0onus to the rights claimant\u2019s disadvantage.”<\/p>\n

Justice Lauwers also discussed what sort of justification for a Charter<\/em>-infringing decision is expected and whether it is really up to \u201ccreative lawyers when the decision is challenged judicially\u201d. He then stated, \u201cIn my view, in order to justify a Charter<\/em> limit, the record of evidence considered by the line decision maker should demonstrate the elements of accountability, intelligibility, adequacy and transparency courts expect from administrative tribunals.\u201d<\/p>\n

In my view, either the law’s societies’ authority to protect the “public interest” in the practice of law stops at ensuring those accepted into the profession are competent and ethical or its public interest authority is too vague to justify limiting freedom of religion or association. The law societies acted outside of their jurisdiction in basing their decision on a private university’s lawful internal policy. Such an approach would avoid the vagaries of\u00a0Dor\u00e9<\/em>, under which the outcome of cases such as TWU’s will depend only on which “values” can be invoked and how valuable a judge thinks each happens to be.<\/p>\n

 <\/p>\n

The SCC will have a chance to revisit Dor\u00e9\/Loyola <\/em>with TWU. Let\u2019s hope it answers some of Justice Lauwers\u2019 questions.<\/p>\n","protected":false},"excerpt":{"rendered":"

Is it \u201cantithetical\u201d to the \u201cCharter value\u201d of \u201cinclusivity\u201d to allow a child to be excused from a public school classroom while sexual orientation or gender is being discussed? In this article I review a case that raises this very question. Many lawyers today are concerned that \u201cCharter values\u201d are being used as a sword …<\/p>\n","protected":false},"author":523,"featured_media":2602,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[35],"tags":[225,175,287],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2596"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/523"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=2596"}],"version-history":[{"count":8,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2596\/revisions"}],"predecessor-version":[{"id":2611,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2596\/revisions\/2611"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/2602"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=2596"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=2596"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=2596"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}

In TWU\u2019s case, as in others, the justification for an impugned decision seems to change all the time. As I pointed out in another article<\/a>, the law societies have at some points emphasized the traditional marriage component of TWU\u2019s Community Covenant (discriminating between same-sex and opposite-sex married couples), but have also alleged that TWU discriminates in effect (though not unlawfully) against LGBTQ people, women, common law couples, singles, and non-Evangelicals. Are these sound legal reasons to not recognize its graduates when there is no question of their competence and professional ethics? Can TWU possibly have any idea of how much it would hypothetically have to change in order to please the law societies?<\/p>\n