In order to set the stage for this column, let us review a specific passage of our beloved Canadian Charter of Rights and Freedoms.
Under Section 2, which gives us our fundamental freedoms, the Charter states,
Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.
The most recent decision by the Ontario Appeals Court in the ongoing saga of Trinity Western University versus the Law Society of Upper Canada, has the distinction, to my mind, of ruling that fundamental freedoms a, b, and d, are now fundamentally meaningless.
By the same token, what evidently does mean something to the court — especially in a world dominated by liberal “norms” — is the equality section of the Charter (15), which states,
“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
Yet, to get back to the most recent developments, a key statement in the Ontario ruling was this:
“TWU can hold and promote its beliefs without acting in a manner that coerces others into forsaking their true beliefs in order to have an equal opportunity to a legal education. It is at that point that the right to freedom of religion must yield”.
This statement suggests that asking promiscuous heterosexuals to promise to live chastely while at a Christian institution is being deemed an institutional coercion — not a clearly understood moral foundation and divine expectation for Christian living. Meanwhile, it bears noting that Jesus rejected both fornication and adultery. Additionally, Jesus also believed that Sodom would have repented had he ministered there.
Also, why is homosexuality being associated with “belief” in this statement?
Most people would call it an orientation upon which one may or may not act. The deliberately strange use of language in this instance makes one wonder what other “beliefs” the Ontario Appeals Court is subtly referring to, perhaps whether a man believes he’s a woman, for example?
So, if this legal decision is to be clearly understood in context, a specific “equality” — not of opportunity, but of identity — is now more important than any fundamental freedom according to the Ontario Appeals Court. And, of course, we all know from decisions that have recently taken place in some provincial jurisdictions, that the list of identity-based equalities grows with every new edition of the Diagnostic and Statistical Manual of Mental Disorder, brought to us by those paragons of conservative social diagnostics, the American Psychological Association.
But it gets even more bizarre.
Do you recall that the word “orientation” is absent from the Charter? For decades, it has been read into the Charter, not named. Hence, the Ontario Court of Appeal has now made plain that an explicit freedom deliberately named within the Charter must yield to an equality implicitly read into the Charter.
In other words, and try to remain seated, what is NOT in the Charter today has greater legal weight than what IS in the Charter. Should the Supreme Court of Canada agree with the Law Society of Upper Canada, it will have taken our judiciary less than 35 years to leave concrete jurisprudence behind and fully embrace interpretive dance. From a speculative point-of-view, such dancing might look rather spectacular in those red and white Santa suits.
In Biblical textual terms, this mistake, however, is called eisegesis— when a Catholic priest or a Protestant pastor reads into the Bible what he wants to find (most often for his homily or sermon), instead of talking about what the text itself is actually trying to say. Every sermon contains some kind of interpretation, but no sermon should knowingly interpret the Scriptures in a manner that is intellectually dishonest. And, while the letter may kill, the letter is actually what the Law is all about— or should be.
And what’s bad in a sermon is far worse in Constitutional law. When explicit freedoms are made the vassals of implicit equalities, we don’t need a Charter anymore. Why codify lofty principles when the interpretations behind the words come to mean more than the words, themselves?
At that point, judicial whim is what Canada has codified, not the rule of law.