conflict of rights – Double Aspect

“Intolerant and Illiberal”

The BC Court of Appeal is right to insist on tolerance for an intolerant institution

In a decision issued yesterday, Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423, the British Columbia Court of Appeal held that the Law Society acted unreasonably when its benchers, following its members, voted “not to approve” the University’s proposed law school, preventing its graduates from practicing in the province and causing it to lose the government’s permission to grant recognized degrees. The unanimous decision “by the court” is not always straightforward to follow in its administrative law analysis, which is surely at least in part the consequence of the convoluted approach that the Supreme Court has taken to analyzing Charter issues when they arise in administrative decision-making. But on the constitutional issue of balancing the allegedly competing considerations of religious liberty and equality rights, the Court gets it quite right when it concludes that “[t]his case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.” [193] Let me explain.

Trinity Western requires its student to sign a “Covenant” which, among other things, seeks to prevent them from having sex outside marriage, and defines marriage as strictly heterosexual. Whether or not this is intended to discriminate against LGBTQ students, it obviously does discriminate. Although there apparently are some such students at Trinity Western, the Covenant is obviously a greater burden on most of them (except those who do not view celibacy as a burden) than on most heterosexual students (though it’s worth noting that the Covenant does restrict the liberty of such students too, and in a way that would surely be unconstitutional if this restriction were imposed by the state). A great many people, within and outside the legal profession, and within and outside the LGBTQ community, are offended by the Covenant’s existence, and have campaigned for Trinity Western’s proposed law school not to be recognized, preventing its graduates from entering the profession. For some, this seems to be a means of putting pressure on Trinity Western to repent its discriminatory sins. But Trinity Western has made it quite clear that, as befits religious fanatics, they will do no such thing. There will be a Trinity Western Law School with the Covenant, or there will not be one at all. There is no tertium quid.

Trinity Western argues that denial of accreditation to its law school by the BC Law Society infringes its religious liberty. The Law Society claims that it has balanced religious liberty and the equality rights of the LGBTQ people, which are infringed both by being put to the choice of either refraining from going to Trinity Western or going there and living in the closet for the duration of their studies. Moreover, the Law Society says that it should not put itself in the position of effectively endorsing the Covenant by accrediting the law school despite the Covenant’s existence. As the Court’s judgment shows, the Law Society did no such thing. Although its benchers were aware of these various concerns, they punted on the decision whether to accredit Trinity Western or not, and let the Society’s members effectively make that decision through a referendum, authorizing it through a resolution that made no mention of the religious liberty side of the ledger.

How should these concerns be balanced, then? More to the point, are these concerns even real? Trinity Western’s clearly are. Its ability to exist as a religious institution is denied when the government (or its delegate the Law Society) denies it an accreditation, that would otherwise be available to it, on the basis of its religious beliefs. Sure, Trinity Western doesn’t have to have a law school. But if the only reason the state will not let it have one is its religious belief, then the state is in default of its duty of religious neutrality, which applies as much to prevent the state from singling out a set of beliefs for a particular burden as to prevent it singling out a set of beliefs for special support (the proposition upheld by the Supreme Court in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3).

The Law Society’s constitutional concerns, by contrast, are simply made up. The moral concerns are real enough ― Trinity Western’s Covenant is profoundly illiberal (though nobody seems actually concerned about that) and homophobic in effect if not in intent. But that is not enough. As the committee of the Federation of Law Societies that considered Trinity Western’s proposed law school pointed out,

approval of the [Trinity Western] law school would not result in any fewer choices for LGBT students than they have currently. Indeed, an overall increase in law school places in Canada seems certain to expand the choices for all students. [Quoted at 174]

The Court stated that “[t]hese findings are entitled to deference”, which may or may not be right. But quite apart from any deference, this statement is self-evidently correct. Even assuming (plausibly even if not entirely accurately) that no LGBTQ student would want to attend Trinity Western, the number of law schools open to such students does not change whether or not Trinity Western’s is allowed to operate. And the idea that Trinity Western might be “persuaded” to drop its homophobia is, as already noted, patently wrong. As the Court concludes, “it is incontrovertible that refusing to recognize [Trinity Western] will not enhance accessibility” [175] of legal education for LGBTQ people.

The Court is also right to reject “the submission that the approval of [Trinity Western’s] law school would amount to endorsing discrimination against LGBTQ individuals”. [183] As it observes, all manner of people and organizations seek and obtain regulatory approval for all sorts of projects and undertakings. It cannot be the case that such approvals are always synonymous with endorsement of these people’s and organizations’ beliefs. If it were otherwise, and the state had to refrain from communicating such endorsements, “no religious faculty of any kind could be approved”. [184] Arguably, no political activity should be either, since the state ought (morally and arguably constitutionally) be politically as well as religiously neutral.

Ultimately, as the Court rightly notes, the issue here is hurt feelings ― people’s outrage at the idea of a homophobic institution being allowed to freely operate not too far from the seat of power in society. The Court’s response to this is spot on:

While there is no doubt that the Covenant’s refusal to accept LGBTQ expressions of sexuality is deeply offensive and hurtful to the LGBTQ community, and we do not in any way wish to minimize that effect, there is no Charter or other legal right to be free from views that offend and contradict an individual’s strongly held beliefs … Disagreement and discomfort with the views of others is unavoidable in a free and democratic society. [188]

I would add just a couple of observations. The first is that the whole Trinity Western imbroglio, which is of course not over as the case is likely to be headed for the Supreme Court, is one illustration of the perniciousness of the regulation of legal services in Canada (and elsewhere). The existence of law societies, which are at once state-sanctioned cartels and permanently-captured regulators, is a problem. The law societies that denied Trinity Western its accreditation, especially those that did it on the basis of referenda, put their members’ political agenda ahead of the public interest in having reasonably-educated (as all concede Trinity Western’s graduates will be) lawyers competing to provide legal services. That the agenda of LGBT equality is on the whole a very good one does not in any way stop this being a case of capture. If legal services were deregulated, and the law societies denied their privilege of erecting barriers to entry into the market, this would not have happened.

The second observation I wanted to make here concerns contrast between the reactions to the Trinity Western Covenant’s discriminatory effects and some other, similar, issues. One of these, which I have already referred to, is that same Covenant’s illiberalism. “No sex outside marriage” is an illiberal, near-totalitarian position. (It was one which actual totalitarians, in the Soviet Union and elsewhere, were quite keen on. They were also quite keen on homophobia, of course.) It would be so even if “marriage” were defined irrespective of gender or sexual orientation. Yet nobody, it seems, has been particularly concerned by Trinity Western’s illiberalism. Only its discrimination got people worked up.

Nor is anyone apparently concerned by other Canadian universities’ questionable approach to individual rights. I am not aware of a comprehensive Canadian resource similar to the Speech Codes Database of the Foundation for Individual Rights in Education, but consider just one example from British Columbia. UBC’s Student Code of Conduct provides that “[a]ny conduct on the part of a student that has, or might reasonably be seen to have, an adverse affect on the integrity or the proper functioning of the University … is subject to discipline under this Code”. What this means is not defined; although there follows a list of examples of what this prohibition might encompass, the Code is careful to state that they are no more than illustrations. Given the absurd vagueness of this rule, one can only conclude that due process rights are not held in very high regard at UBC; nor is freedom of speech, it would seem, considering the UBC Statement on Respectful Environment for Students, Faculty and Staff purports to proscribe such things as “gossip”. Again, these things do not seem to trouble anyone.

My point, to be clear, is not that these things are necessarily worse than, or even as bad as, the discrimination in the Trinity Western Covenant. It is only that the indignation that the Covenant has aroused seems at least somewhat selective. The law societies that have pounced on it to deny Trinity Western its accreditation are not all that concerned with individual rights. They are, mostly, concerned with one specific right, which just happens to be at the leading edge of contemporary progressivism ― for the time being, anyway (and perhaps not for much longer, as trans rights take over that position). However important that right ― and it is important ― signle-minded obsession with it does not show the law societies in a very good light as regulators in the public interest.

Be that as it may, it is a relief that five judges of the BC Court of Appeal saw this case for what it was ― an attempt by a majority, however well-meaning, to impose its views on a minority, however bigoted, to indulge its own moral preferences, however correct, rather than to defend anyone’s rights from legally cognizable injury, however slight. One can only hope that at least as many of their colleagues on the Supreme Court will see it that way too. Just as municipal functionaries in Québec should not be able to use their regulatory powers to silence a turbulent imam, Canadian law societies should not be able to use theirs to clamp down on turbulent pastors. The contrary result would be, as the Court notes, intolerant and illiberal.

Facing Justice ― English Version

I wrote last year about the Supreme Court’s decision on whether a witness in a criminal proceeding could testify while wearing a niqab, a full-face veil, R. v. N.S., 2012 SCC 72, [2012] 3 SCR 726. Of course, the questions about balancing trial fairness and freedom of religion which the Court had to confront in that case do not only arise in Canada. An English criminal trial court recently had to confront them too, delivering its decision on the matter in R. v D(R) [2013] EW Misc 13 (CC) yesterday.

One difference between the English and the Canadian cases is that in N.S., it was a witness (namely, the complainant) who asked to testify with her face covered. In D(R) it was the accused. Judge Murphy, who decided D, thought it was an important distinction:

there are different considerations in these instances. For example, the public has a strong interest in encouraging women who may be the victims of crime from coming forward, without the fear that the court process may compromise their religious beliefs and practices. On the other hand, the rights of the defendant in any resulting criminal proceedings must also be protected. So there is a potential for a challenging conflict of competing public interests. A defendant may, of course, be a witness; but this does not define her role in the proceedings. As a defendant, she plays the central role throughout proceedings, and unlike a witness, she is brought before the court under compulsion and does not appear as a matter of choice (par. 8).

Another distinction which Judge Murphy made in discussing N.S. concerns the significance of the right to religious freedom in Canadian law, by virtue of the Canadian Charter of Rights and Freedoms, which he took to be far greater than that of the “qualified” right to freedom of religion under the European Convention on Human Rights. (I think that Judge Murphy is wrong about this. He takes the protection of freedom in s. 2(a) of the Charter to be absolute, because that provision lacks a qualifying clause like the corresponding one of European Convention ― but of course the Charter does have a qualifying clause, albeit a general one, s. 1.)

One element of N.S. that judge Murphy rejects is the preliminary step of inquiring into the sincerity of the accused’s belief that she must wear the niqab. Such an inquiry would be too difficult to undertake, and different results in different cases would lead to “a kind of judicial anarchy” (par. 15). Better to have a general rule that will apply unless the prosecution decides to bring some evidence suggesting that the accused is, in fact, insincere.

These distinctions notwithstanding, Judge Murphy’s understanding of the basic problem facing the court is not very different from that of the majority in N.S. There is a clash of long-standing, fundamental principles: freedom of religion on the one hand, trial fairness on the other. Religious freedom means being able to wear the clothes one’s religion prescribes. Trial fairness means requires the judge, the jury, and counsel to be able to observe the witness who gives evidence, and the accused even when she is not giving evidence.

Judge Murphy’s views on the trial process, however, are similar to (and borrow from) those of Justice Lebel’s concurrence in N.S. A trial is a “communicative” process, and seeing the accused throughout is very important. It would be unfair to all the other participants in the proceedings if they could not observe the accused’s face. Judge Murphy goes further still. He finds that because “[t]he Court may not discriminate between different religious traditions, or between those with a religious belief and those with none,” if a woman wearing the niqab “is entitled to keep her face covered, it becomes impossible for the Court to refuse the same privilege to others, whether or not they hold the same or another religious belief, or none at all” (par. 60). Furthermore, if judges had to accommodate niqab-wearers on the mere assertion of their religious beliefs, they would in effect be deprived of their entitlement to control their courts’ procedures.

Balancing these considerations against the freedom of religion, Judge Murphy concludes that the accused may not wear a niqab while giving evidence, but may do so at other moments of the trial, except when it is necessary to identify her. To be sure, this may mean that some accused will choose not to give evidence, or will experience discomfort while doing so. Giving evidence, if one wishes to, is a right of the accused. However, this right “involves a corresponding duty to submit that evidence to the scrutiny of the jury” (par. 70). While in other cases it is often possible to accommodate religious beliefs, it would be too much of a strain, and indeed an impairment of rights, to arrange for trials of niqab-wearers to involve only women (as judges, jurors, and counsel).

As I said in my comments on N.S., I am more comfortable with the case-by-case approach taken by the majority in that case than with a bright-line rule. However, it seems clear enough to me that the majority’s approach will, in reality, far more often than not lead to witnesses being ordered to remove the niqab while giving evidence. The practical difference between the N.S. approach and the one taken in D is thus likely to be very minor.

What I don’t like in Judge Murphy’s reasons are his comments on discrimination and the need to have the same rule apply to all. Of course the law should not discriminate between different religions. But to accommodate a peculiar duty that the members of one faith have is not to make them a special favour; an accommodation made on account of such a duty need not be extended to those who have no such duty. The fact that a Sikh boy has the right to wear a kirpan to school does not mean that others ought to be able to bring knives, which they are not compelled to do by their conscience. The fact that a woman who feels in conscience bound to wear the niqab may (sometimes) do so in court need not mean allowing others to wear a mask. Of course, these differences mean that an inquiry into the sincerity of a belief is sometimes necessary (though often sincerity will be admitted by all parties), which is another point where Judge Murphy, in my view, goes wrong.

In any case, despite these problems, his opinion is thoughtful, and a useful read for those interested in the topic of religious accommodation.

Facing Justice

In a decision delivered this morning, R. v. N.S., 2012 SCC 72, the Supreme Court has ruled that the rights of a witness who, for sincere religious reasons, wishes to testify with her face covered and those of an accused against whom she testifies must be balanced on a case-by-case basis, eschewing a bright-line rule, though suggesting that in doubt the accused’s right to a fair trial prevails and militates in favour of an order that the witness remove the face covering. (If you want a less convoluted version of this summary, look at media titles: most, including the National Post, the Toronto Star and all the French-language media―Radio-Canada, Le Devoir, La Presse, and Le Journal de Montréal―go for something like “Niqab allowed in some cases,” but the CBC and the Globe & Mail go for variations on “Judge can order niqab to be removed.” I wanted to avoid this glass half-empty or half-full problem.)

The appellant, N.S., is due to testify at the trial of two relatives whom she accuses of raping her. She wants to do it while wearing a niqab. The accused say she ought to be ordered to remove it while testifying, because not seeing her face prevents the trier of fact (judge or jury members) from making accurate credibility findings and their lawyers from cross-examining her effectively, thus jeopardizing the fairness of their trial. There are thus fundamental rights involved on both sides, freedom of religion and the right to a fair trial. What gives?

First of all, says Chief Justice McLachlin for the majority, it is important to check whether the witness’s insistence on covering her face is motivated by a sincere belief. The first instance judge in this case did not conduct that inquiry properly, so the rest of the reasons is hypothetical―it only presumes that this first requirement has been satisfied.

The second question to be answered is whether allowing the witness to wear a niqab actually compromises trial fairness in the circumstances. Where the evidence the witness will give is uncontested, that is not the case. When credibility is at issue, however, fairness will be compromised. The Chief Justice rejects the claim of the appellant and some interveners that there is nothing much to be learned from seeing a witness’s face. The common law has always proceeded on the contrary assumption, she points out, and while such assumptions are known to have sometimes resulted from unfounded misconceptions and even myths, they should not be discarded without any evidence that such is the case.

If it finds that both a sincere religious belief and trial fairness are implicated in the circumstances of a case, the court must attempt to reconcile them by accommodating both. However, it may well be that there is no accommodation which upholds both rights to be found.

If so, the rights at stake must be balanced to determine which is to prevail, again, in the circumstances of the case. “The question,” says the Chief Justice, “is whether the salutary effects of requiring the witness to remove the niqab, including the effects on trial fairness, outweigh the deleterious effects of doing so, including the effects on freedom of religion” (par. 34). The Chief Justice sets out a number of factors for courts to consider. On the side of freedom of religion, they include the degree of impairment which a particular witness’s freedom would suffer if she is ordered to remove the niqab, but also the risk that witnesses will simply refuse to come forward if they cannot comply with their religious obligations and thus crimes―very serious crimes like rape in this case―will go unreported or unpunished. On the side of trial fairness, there is the extent to which credibility is central to the case, the stage of the proceedings, and whether the trier of fact is a judge or a jury. The list, however, is rather tentative, and non-exhaustive.

Finally, the Chief Justice turns to the proposed alternatives to this uncertain balancing―clear rules either allowing or prohibiting the niqab at all times. Always allowing it, she says, undermines trial fairness and increases the risk of wrongful convictions. Always prohibiting it, on the other hand, in the name of making courts religiously neutral spaces, “is inconsistent with Canadian jurisprudence, courtroom practice, and our tradition of requiring state institutions and actors to accommodate sincerely held religious beliefs insofar as possible” (par. 60). It infringes religious freedom even when doing so does nothing for trial fairness. And, the Chief Justice points out, it is simply not true that we evacuate religion from the courtroom―witnesses have the option to swear on the Bible, the Koran, etc. The state must be neutral towards religion, but it should not hinder it gratuitously.

The two other opinions urge the adoption of the clear rules that the majority rejects.

While concurring in the disposition of the appeal, Justice Lebel, writing for himself and Justice Rothstein, argues that trial fairness and the openness of courts are too fundamental ever to be compromised. Evidence that might be unchallenged at one stage of the trial could be called in question at the next. Anyway, while special rules departing from ordinary procedures can be put in place in order to facilitate communication between the various actors of a trial, a niqab only impedes it, “on the basis of the assertion of a religious belief in circumstances in which the sincerity and strength of the belief are difficult to assess or even to question” (par. 77).

Justice Abella, dissenting, takes the contrary position. In her view, a witness should always be allowed to wear a niqab, except in cases where identity itself is at issue. Otherwise, while “seeing more of a witness’ facial expressions is better than seeing less” (par. 82), seeing less does not prevent the trier of fact from assessing credibility. Anyway, the law already makes any number of exceptions that allow people to testify in ways that prevent their demeanour from being visible to and assessed by the trier of fact. That a witness must testify with her face open is only a general expectation, not a general rule, while the risk of being required to breach one’s religious duty will deter women from acting as witnesses, and is thus a sign of exclusion of religious minorities.

The contrast of style between the majority, on the one hand, and the concurrence and the dissent is as strong as the substantive difference. The majority’s opinion is rather dry and legalistic. The concurrence and the dissent are thick with talk of values and quite impassioned.

For my part, I think that the majority has it right. There really are two very serious rights at issue here. Justice Lebel’s snide comment about the possible insincerity of niqab-wearers and Justice Abella’s claim that since we already compromise fairness some of the time there is nothing wrong with compromising it some more do not persuade me. Case-by-case balancing―although the Chief Justice’s comments suggest that in practice the balance will be tipped towards trial fairness and thus ordering the witness to remove the niqab― might be frustrating, but I don’t think that there is a better way to resolve the clash of rights.