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KilltheLSAT

Trinity Western Loses 7-2

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2 minutes ago, Rumpy said:

I agree with both of these comments. (well except on preferring the dissent- I believe this was the right decision)

Soooo - now what.  The BC Teachers are not a group of shrinking violets - could a group of them agitate for the revisiting of the approval of TWU's teacher accreditation?

Courts should be very hesitant to tell a religious institution which of its practices are "minimal".  That is not to say that another value doesn't outweigh that value - but if the Covenant was indeed "minimal" - TRU would have removed it, and probably have a law school today

 

 

They didn't remove it because they won in 2001, plus they are the type of fundamentalist that likes to have control over its members.

I bet they are having behind the scenes discussions about removing it now. 

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2 minutes ago, epeeist said:

Yeah, I know many people who choose, as adults, and based upon their beliefs, to become practising adherents of a religion (Judaism, Islam, and Christianity are the three I can think of knowing people who became more observant as adults). Their choice to practice was based upon their beliefs (which weren't a choice).

While I believe some faiths do have the view that you are automatically a member of that faith because of your parents, I know in my church it's very explicit that your faith has to come through choice - the choice of accepting Jesus as Lord.

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14 minutes ago, TrialPrep said:

Just because someone was brainwashed as a child doesn’t mean they have no choice as an adult, does it?

Hope this doesn't inject bias into your work with clients who happen to hold a religion ;)

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3 minutes ago, Malicious Prosecutor said:

Yet another blow to religion in the public sphere.  TWU 2001 wasn't distinguishable.  I thought Charter rights weren't supposed to swing in the wind of public opinion, but what do I know.

I mean I'm not shocked - I resolutely refused to predict this one, but I'm still very disappointed.

I don't think it's a blow to religion in the public sphere and I thought the dissent was a bit hysterical on that. You can have religion in the public sphere all you want, but you cannot use it to limit the rights and choices of other people. I think it defines the limits of how far religion can go in the public sphere, which is not going to sit well with some extremists, but overall it's a reasonable compromise. They are basically saying that their decision would be different if TWU made its effing covenant optional. 

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2 minutes ago, Psychometronic said:

Hope this doesn't inject bias into your work with clients who happen to hold a religion ;)

It doesn’t. Perhaps you’re assuming I don’t hold a religion. 

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2 minutes ago, Malicious Prosecutor said:

While I believe some faiths do have the view that you are automatically a member of that faith because of your parents, I know in my church it's very explicit that your faith has to come through choice - the choice of accepting Jesus as Lord.

Ramadan ends today. I know (and I've read of more) people who, say, give up alcohol during Ramadan and strictly fast, but drink alcohol regularly the rest of the year. Some would argue, oh, that means that fasting and Ramadan isn't important to you religiously, so we shouldn't have to accommodate you. I would strongly disagree; someone may only partly, or sometimes, or otherwise in a limited way follow requirements of their religion, but that doesn't make it less significant, important, or deserving of protection.

Or, say a Muslim woman chooses to wear a hijab only during Ramadan. That should be equally as protected during Ramadan for that person, as someone who chooses to wear it year-round.

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28 minutes ago, epeeist said:

Rowe's reasons were the worst, there's not even any Charter issue?!

He wasn't saying there's no Charter issue but that the type of freedom of religion being advocated by TWU is incorrect and genuine freedom of religion wasn't being infringed (to paraphrase). TWU claims the right to enforce a religious code on a diverse population of students (that diversity being statutorily required) and it's good that someone said that's going too far.

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1 minute ago, benjuryon said:

He wasn't saying there's no Charter issue but that the type of freedom of religion being advocated by TWU is incorrect and genuine freedom of religion wasn't being infringed (to paraphrase). TWU claims the right to enforce a religious code on a diverse population of students (that diversity being statutorily required) and it's good that someone said that's going too far.

He said freedom of religion is not engaged in this scenario because it does not extend to an institution.

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14 minutes ago, Malicious Prosecutor said:

While I believe some faiths do have the view that you are automatically a member of that faith because of your parents, I know in my church it's very explicit that your faith has to come through choice - the choice of accepting Jesus as Lord.

Which, as a personal belief, you're totally entitled to. However, in your capacity as a crown prosecutor, I don't think you're entitled to base any decisions on that belief (any more than Jeff Sessions should be entitled to use the Bible as the purported justification for his abhorrent decisions on immigration issues).

Moreover, if you are going to bring those personal beliefs into the public sphere, I think they should be entitled to the withering scrutiny of any other beliefs. For example, the absurdity of believing that a random Mesopotamian human was born of a virgin, the "son" of some divine being, which created the world in seven days and died for our "sins". A set of beliefs, which, as it happens, are not all that different from a bunch of popular cults that existed around the same time... and a holy book that was largely written by accounts decades (and in some cases), centuries, after the fact. Can you imagine writing a first hand narrative about what happened to Laura Secord (1812) or at Gettysburg (U.S. Civil War)? Does it really stretch the imagination to believe that maybe your account might leave out a whole bunch of key facts? Then, imagine that two hundred years from now, a bunch of people would get together to decide which of these accounts, which, as we've established, are incredibly accurate, should be included in the holy book?

All of which, would be fine, if the subject was confined to whether the people who believe in this fantasy wanted to practice their beliefs in the privacy of their own homes. The problem is, they want to take advantage of public benefits and exclude people who manifestly do not agree with them. That's where we have to draw the line, as a society. 

Edited by Pyke
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6 minutes ago, benjuryon said:

He wasn't saying there's no Charter issue but that the type of freedom of religion being advocated by TWU is incorrect and genuine freedom of religion wasn't being infringed (to paraphrase). TWU claims the right to enforce a religious code on a diverse population of students (that diversity being statutorily required) and it's good that someone said that's going too far.

On the facts, it was the most sensible decision, but I don't think we could rationally expect a majority decision to conclude as such, given so many people do have the background of Malicious Prosecutor.

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1 hour ago, providence said:

The Law Society's mandate to approve schools includes protection of the public, which extends to considering equal access to the profession, reputation of the profession, promoting diversity,  removing obstacles to the profession, etc. A more diverse bar is a more competent one.

The way it chooses to fulfil that mandate is entitled to deference on review, as in Law Society of Manitoba v. Green. The Law Society's decision is reasonable given the equality concerns. It was entitled to consider TWU's admission requirements and is not usurping the human rights tribunal to do so. The covenant is discriminatory and would do harm to LGBTQ people.

The Law Society's statute allowed it to hold a referendum whether or not the Charter was implicated. It did not have to give reasons for the vote as the debate was clear from the record. The elected representatives were fulfilling their duty.

Religious freedom is engaged by this discussion - evangelical Christians feel strongly that studying in a Christian environment with the Covenant is an important part of their spiritual growth. This belief was interfered with by the Law Society. The interference is proportionate and justified because the limitation on religious freedom is not significant - it had to do specifically with the Covenant and TWU refused to compromise on that. The denial is only to a proposal for accreditation from TWU with a mandatory covenant. Graduates are not prohibited from practicing in BC and evangelicals are not prohibited from signing the covenant or associating with those who do if they so choose. A mandatory covenant is not required to study law in a Christian environment [I have to say, this was my point, so I like feeling vindicated here!]

Prospective TWU law students prefer but do not find it necessary to study at TWU. They have much less at stake than in other religious freedom cases ie. Hutterian Brethren. 

On the other side, the decision not to approve TWU significantly advanced the law society's objectives. Having 60 seats at TWU law effectively closed to LGBTQ applicants is a severe consequence that violates their dignity and could cause them significant harm.

The religious practice impacts others and so has to be balanced. Minor limits on religious freedom may be necessary in a diverse society.

TWU people are free to practice their religion but not to impose it on others. 

CJ basically agrees but doesn't like the use of the word reasonable for an outcome implicating the Charter since denying Charter rights will always be unreasonable, says the focus in admin decisions involving the Charter should be proportionality, says freedom of association and expression are also engaged but rejects TWU's s.15 claim as there is no stereotyping or prejudice in the LSBC's decision - it was made to ensure equality.

She disagrees the impact on TWU is minor - she also disagrees with the majority and says people who choose to attend are not compelled to sign the covenant as they are there voluntarily. 

She disagrees with the LSBC that there will be much impact on the availability of law school seats. Their best argument is the refusal to condone discrimination. TWU's insistence on the covenant is discriminatory towards LGBTQ people. She compares this to TWU 2001 and the role of the teachers' society to protect against discrimination. The law society decision was proportionate and reasonable on this basis.

Rowe: It was within the law society's mandate to consider this issue due to its role in preventing discrimination, but there is no Charter infringement, so use the usual principles of judicial review and not Dore/Loyola. Charter values have no place in administrative decision making but Charter rights do. Charter values should not be used on a stand-alone basis. They are too vague/subjective.  If an administrative body violates Charter rights, we need to go to s.1. Infringement and justification must be kept separate. [I very much agree with this.] Dore/Loyola do not speak to where the burden lies when addressing Charter issues. He acknowledges Dore/Loyola are binding, but we need clarity.

This is not a religious freedom issue because an institution cannot possess the individual personal volition that religious believers have and they cannot extend beyond those of the individual claimants, notwithstanding that there is a communal aspect to religion [I also agree.] The individual claimants are free to disagree with homosexual sex. This belief does not require them to have a mandatory covenant. However the majority considered this in the context of whether there was an infringement and it should be considered at the stage of sincerity of the belief [agree also and said this] and despite his seeming to have doubts on this point, he accepts that it is sincere. 

However, religious beliefs are a shield from interference with personal belief and cannot be used as a sword to coerce others [super, super agree!] Faith communities trying to impose adherence to their beliefs falls outside of freedom of religion and is not protected [love this!] TWU did not provide enough on freedom of expression or equality rights to find a breach, so no Charter.

Had there been a Charter breach it would have been wrong for LSBC to proceed by referendum as Charter rights should not be subject to the tyranny of the majority - what @Jaggers said and I agree.

The law society procedure used and decision not to accredit is reasonable to fulfil its mandate.

Dissent: TWU is not subject to the Charter or human rights law as a private denominational uni. The regulator interfered with its autonomy and limited access to the profession on religious grounds. LSBC should only have considered fitness of graduates. Considering Charter issues is beyond its mandate. It cannot regulate law schools. The majority has wrongly broadened LSBC's mandate. The benchers also fettered their discretion by having a referendum without transparently engaging in the exercise of balancing Charter rights and adopting the results without further discussion. They abdicated their responsibility by holding a vote. 

Dore allows statutory objectives to trump Charter rights when it should be the other way around. They agree with Rowe and CJ re: Charter values not receiving independent protection as opposed to Charter rights. Equality is too vague a claim. Using it allows the majority to avoid making its decision explicit. Despite CJ and Rowe's reasons the majority has refused to clarify Dore. Dore should be like Oakes with a specific justification framework. 

LSBC decision infringes religious freedom. Rowe is too narrow - it is the religious essence of an activity and not whether it is mandatory that should be protected. 

The Covenant is important and the infringement was severe. It takes away TWU's right to decide its character and how it is run. 

Accrediting TWU promotes religious diversity which is in the public interest. The LSBC decision is unreasonable because it does not accord with its goal of promoting diversity, tolerance etc. The state is bound to foster pluralism but private institutions are not. The state should be neutral, accommodate difference, and not impose secularism as LSBC has done.  Having a diversity of religious views is in the public interest and consistent with LSBC's mandate. The goal of protecting LGBTQ people is also unreasonable as they are not the only people affected by the covenant. The legislature already approved TWU and its covenant and beliefs so the state cannot now use them against the school. 

 

 

 

 

 

 

 

 

Thanks!

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11 minutes ago, benjuryon said:

He wasn't saying there's no Charter issue but that the type of freedom of religion being advocated by TWU is incorrect and genuine freedom of religion wasn't being infringed (to paraphrase). TWU claims the right to enforce a religious code on a diverse population of students (that diversity being statutorily required) and it's good that someone said that's going too far.

??

Everything TWU did is allowed by Charter and BC HRC (with a broader religious exemption than, say, Ontario, as I recall). When courts start saying what is and isn't important, they start saying things like Jewish or Muslim prisoners don't really need kosher or halal food because it's not really that important, or whatever. It's fine to balance concerns, maybe there are situations in which reasonable not to supply kosher or halal food, but it should be based upon a court being dismissive of the person's beliefs (absent some indication they were pretextual/made up or something).

EDIT: to clarify, assuming BC government agreed, TWU could open a law school that wasn't accredited by LSBC or LSO (or some other law societies that revisit the matter?). It can require students to comply with the covenant, as it does all its other students. And when those hypothetical law students graduate, they would the in a position to seek admission to those law societies that didn't accredit TWU:

"[27]                          At the outset, it is important to identify what the LSBC actually decided when denying approval to TWU’s proposed law school. The LSBC did not deny graduates from TWU’s proposed law school admission to the LSBC; rather, the LSBC denied TWU’s proposed law school with a mandatory covenant."

Edited by epeeist
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Just now, Pyke said:

On the facts, it was the most sensible decision, but I don't think we could rationally expect a majority decision to conclude as such, given so many people do have the background of Malicious Prosecutor.

I have a religious background and I was saying all along I don't think this is a freedom of religion issue - I think I even said it in the other thread. I always said that it was about TWU's covenant, which was their choice and was not a direct requirement of their faith, and that equality concerns trump that covenant. That's essentially what Rowe says far more eloquently. 

I don't know that the majority were operating under present or past religious belief. I think they just did that thing judges do where they split the decision - accept half the argument but then slam you on the other half, like finding a charter breach but denying on s.24(2). I think they think it makes them look more smart/measured and makes the losing party feel more heard. 

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1 minute ago, epeeist said:

??

Everything TWU did is allowed by Charter and BC HRC (with a broader religious exemption than, say, Ontario, as I recall). When courts start saying what is and isn't important, they start saying things like Jewish or Muslim prisoners don't really need kosher or halal food because it's not really that important, or whatever. It's fine to balance concerns, maybe there are situations in which reasonable not to supply kosher or halal food, but it should be based upon a court being dismissive of the person's beliefs (absent some indication they were pretextual/made up or something).

I think what they were saying is that they accept that not accepting homosexual intimacy may be a sincerely and strongly held belief but they could not see how that belief required a particular document to be signed by other people. Also they were going by the litigant's position which was that he would have preferred to study in a Christian university - not that it was essential or he could not study anywhere else. 

I think kosher and halal food are different because no one who eats them is trying to force everyone else to eat them or saying they can eat pork if need be.

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As with all topics related to religion, I’d just like to remind everyone that this issue can get heated. Please be mindful of others (and our rules here) when making your posts. 

So far it’s been fine, but I wanted to put this out here sooner rather than later. Thanks!

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8 minutes ago, Pyke said:

Which, as a personal belief, you're totally entitled to. However, in your capacity as a crown prosecutor, I don't think you're entitled to base any decisions on that belief (any more than Jeff Sessions should be entitled to use the Bible as the purported justification for his abhorrent decisions on immigration issues).

 

Pyke, you just don't understand.  As a Christian I try to base every single decision I make based on my understanding of Christ's message.

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1 minute ago, Malicious Prosecutor said:

Pyke, you just don't understand.  As a Christian I try to base every single decision I make based on my understanding of Christ's message.

I buy this, but what about Christ's message to set the captives free? :)

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And at the same time, no doubt, navigate according to the professional rules by which you are bound. 

Can’t be easy to do at times. 

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2 minutes ago, providence said:

I buy this, but what about Christ's message to set the captives free? :)

We're going pretty far afield here, but Christ was pretty clear that the Kingdom of God he proclaimed was not on earth, but in heaven.

And besides, he also said to 'render unto Caesar the things that are Caesar's'.

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2 hours ago, TrialPrep said:

Alright f it, where’s @maximumbob? get in here and eat some crow!

Sorry, have a day job.

Haven't read the decisions yet, but obviously disappointed, the SCC crapped the bed again.  Just based on the head note, I note the absurdity of the SCC's ruling in the Ontario case - the LSO's decision to deny accreditation to a a new law school that is very different than all the others, promotes diversity?  

Say what?  The LSO's decision does nothing to promote diversity. It doesn't mean we'll have more gay law school graduates (it might even mean we have fewer, because the pool of law school positions is smaller).  It also means we'll have a pool of lawyers from a less diverse background not a more diverse background.  There seems to be some sort of weird understanding of the word "diversity" to mean "gay friendly".  That isn't what it means, it means having difference.  TWU is decidedly different, no one denies that, but I guess that's the sort of diversity we're looking for. 

I also make an observation on section 1.  The SCC's jurisprudence in this area has departed markedly from the text of the Charter.  There is no reason why the LSO's decision making in this case shouldn't be subject to the a rigorous oakes test kind of analysis.  This isn't akin to the sort of administrative decision heard in Dore (and I have qualms about the low threshold for section 1 in that context), this was a policy decision - akin to a legislative decision, a vote by benchers.  The LSO should be held to the strict Oakes test.  

I wouldn't be too cheerful about this, if I were you, the court is gutting the limitations on section 1 in the administrative context - in an increasingly administrative state, that gives the state much more power to abuse and violate our rights.   

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