Thursday, July 21, 2016

Ontario Court of Appeal rules that TWU graduates cannot practice law in Ontario

Trinity Western University (TWU) requires all its students to sign a Community Covenant Agreement, which demands (among other things) that sexual relations be restricted to heterosexual married couples. Violators of the Covenant are subject to academic censure, up to and including expulsion. TWU is planning to open a law school in September 2018.

The Law Society of Upper Canada's reaction to this blatantly discriminatory policy, after consulting with its members, was to deny TWU graduates from practising law in Ontario. Last month, the Ontario Court of Appeal ruled the Law Society of Upper Canada was within its rights to do so.

While I am pleased with the overall decision, some of its reasoning leaves me discomfited.

First, the good.

The Court states unequivocally (P115) “that TWU’s admission policy, viewed in conjunction with the Community Covenant, discriminates against the LGBTQ community on the basis of sexual orientation contrary to s. 15 of the Charter and s. 6 of the HRC.”

Later on, the Court acknowledges again the harm that TWU's Covenant does (P138): “LSUC’s decision not to accredit TWU does not prevent the practice of a religious belief itself; rather it denies a public benefit because of the impact of that religious belief on others – members of the LGBTQ community.”

The Court looks at the procedure LSUC followed in making its decision (P122-128) and finds that it was fair. Therefore, (P132) “There is nothing wrong with a law society, acting within its jurisdiction, scrutinizing the admission process of a law school in deciding whether to accredit the law school. […] LSUC could take account of the fact that all law schools currently accredited by it provide equal access to all applicants in their admissions processes. An accredited TWU would be an exception.” This is the key paragraph in the ruling that is generally applicable.

Here the judge a) implicitly acknowledges the discriminatory nature of the Covenant against homosexuals, and b) states that law societies are within their rights to take that into account when determining whether to accredit a law school. It is this finding (which is essentially repeated in P135) that I hope sways the justices at the inevitable Supreme Court appeal. 

Other aspects of the ruling I found to be troubling.

The Canadian Secular Alliance was an intervener in the case, and submitted a factum in which the key arguments were:
  • The Charter exists to protect people from discrimination. It cannot be used as a justification to discriminate against others.
  • This case isn't about studying law in an evangelical Christian environment. It's about enforcing an openly discriminatory policy that violates the Charter rights of students, and claiming protection for this bigotry under the aegis of religious freedom.
  • Nothing in Christianity (doctrine, theology, tradition) demands studying law in a Christian environment or strictly from a Christian perspective, so Charter religious freedom protections are not applicable.
  • LSUC's decision is not an infringement of religious freedom. No TWU student is forced to alter their beliefs about what constitutes healthy sexuality. No one is being silenced. To claim that the mere presence of a non-celibate homosexual in the same law class as an evangelical Christian is an infringement of their religious practice is unreasonable.

 Regrettably, the Court rejected the first point above and ignored the others.

The Court found that institutions, not just individuals, have Charter rights. Thus the religious rights of TWU (not its students or faculty) must be balanced against potential harms against minority groups. In the words of the Court (P94):
“individuals [...] necessarily require an entity to both establish a community within which members can study law from an evangelical Christian perspective and to set and enforce the religious practices to be followed by the law school community. It is only through TWU that the claim to operate a degree-granting accredited law school from an evangelical Christian perspective can possibly be advanced. In this way, TWU acts as the vehicle through which the religious freedoms of its individual members, including teachers, students, and staff, can be manifested, pursued and achieved.” [emphasis added]
Thus, the Court concludes that TWU’s religious freedom not only exists, but is infringed upon by the LSUC decision (P99). “The question remains, however, whether the LSUC’s decision not to accredit TWU because of the existence of the Covenant would interfere with TWU’s religious freedom in a manner that is more than trivial or insubstantial. I accept that it would.”

The Court also finds, in P101, that an individual’s “right to freedom of religion under s. 2(a) of the Charter” was infringed by LSUC’s decision not to recognize TWU graduates. The judge also mentions “TWU’s religious freedom” in P11 and P114, and implicitly refers to it in others.

In addition to being wrong (in my opinion) in itself, granting religious rights to institutions is a troubling precedent. I am concerned that if this reasoning is upheld by other courts, future Canadian jurisprudence may echo recent American rulings, such as the Hobby Lobby case (certain corporations can restrict the health coverage it provides for its employees if a procedure conflicts with the religious beliefs of its owners). The reasoning can also be used to blur the distinction between institutions and individuals (as the United States has also done, and I worry that Canada may be only a few years behind).

Another concern is that TWU has managed to hoodwink the Court. TWU justifies its existence as an accredited Canadian university based on its openness to all prospective students (subject to the restrictions in the Covenant). But while the Court implicitly recognizes this, it also finds (P91) that “the decision to attend TWU is fundamentally a religious one”. The contradiction between TWU being a proselytizing “community committed to making a positive difference in the world for Christ” that allows one  (P92) “to participate in an education community, consisting largely of like-minded individuals, that embraces values grounded in evangelical Christian beliefs”, and being an open, welcoming culture for all - including atheists and homosexuals, who presumably would have significant issues in such an environment - seems to be lost on the Court.

Ultimately, the Court ruled in favour of the Law Society of Upper Canada for two reasons:
  • LSUC was scrupulously fair in the procedure it followed (P122-128) to determine that it would not recognize TWU law graduates. 
  • LSUC has a statutory mandate to serve the public interest. TWU has the right of freedom of religion under section 2 a) of the Charter. The LSUC decision strikes a reasonable balance between these competing objectives. P143 is the crux of this argument: 
“Taking account of the extent of the impact on TWU’s freedom of religion and the LSUC’s mandate to act in the public interest, the decision to not accredit TWU represents a reasonable balance between TWU’s 2(a) right under the Charter and the LSUC’s statutory objectives. While TWU may find it more difficult to operate its law school absent accreditation by the LSUC, the LSUC’s decision does not prevent it from doing so. Instead, the decision denies a public benefit, which the LSUC has been entrusted with bestowing, based on concerns that are entirely in line with the LSUC’s pursuit of its statutory objectives.”
I expect TWU's appeal will focus on discrediting the logic and conclusion of this paragraph of the decision.

One key pillar of the decision - the specifics of LSUC's procedural fairness - will not be the legal principle under dispute if the Supreme Court of Canada agrees to hear the appeal (as there are pending decisions for similar cases in British Columbia and Nova Scotia). The other fundamental argument - that the decision is a reasonable balance between competing rights - confers upon religious organizations a status roughly equivalent to the rights enjoyed by religious individuals. I strongly support the latter, but am deeply uncomfortable with the former.

Thus, unlike last year's Supreme Court ruling on prayers to open official municipal proceedings, the Ontario Court of Appeal decision is not the clear upholding of secular principles that one might hope for.

Monday, June 20, 2016

Trans-Pacific Partnership: An open letter to Chrystia Freeland

On June 15, Minister for International Trade Chrystia Freeland held a town hall meeting in Toronto to consult with the Canadian public about the Trans-Pacific Partnership (TPP). I was fortunate enough to attend.

In addition to Minister Freeland, there were three panelists:
Minister Freeland opened the evening by stating she was on a listening tour, and wanted to hear what Canadians had to say about the TPP. She said she might comment at the end, but her goal was primarily to give the audience the opportunity to speak. She also said that Canada had a secret weapon - she would bring Jerry Diaz, renowned for his fierce and effective negotiating skills, to the join Team Canada at the negotiating table with other countries.

I found this puzzling - the TPP text has been completed. Further changes and negotiations are unlikely as any amendments would need to be agreed to by the other eleven participating countries. Freeland did not elaborate.

Jerry Diaz spoke next, and it quickly became clear his reputation is well-founded. His booming voice filled the hall and his passion quickly swept through the room. He complained that the Japanese and Korean economies are closed to Canadian exports. After calling the Trans-Pacific Partnership "disastrous", Diaz proclaimed that, "We [Canadian labour] are very pro-trade. But we need to protect manufacturing, like the Japanese, like the Koreans!" Rapturous applause followed.

He then stated that "Canada imported about 190,000 automobiles from Japan; Japan imported 100." He provided similar numbers about Korea. This left me puzzled, on a couple of fronts:
  • Japan drives on the left side of the road, so its vehicles have the driver's seat on the right. The country manufactures cars specifically for North American (and European) markets with the steering wheel on the left. Unless Canadian manufacturers produce cars specifically for Japanese markets, why should we expect them to import our vehicles in any significant quantity?
  • If the real issue is trade barriers, and not attempting to sell products unsuitable for the target market, wouldn't an agreement to ease trade be beneficial? There may be other reasons to consider the TPP a "disaster"; but if so, why focus on the current disparity of the number of cars Japan and Korea export to Canada vs. what they import?
Michael Geist spoke next. Freeland mentioned in her opening remarks that she read his entire "The Trouble with the TPP" series, and that her staff would race to understand each post within minutes of publication because "they knew they would be getting questions about them." He mentioned several structural problems with the TPP. "Canada was at a disadvantage throughout the negotiations," Geist said. Because Canada joined the talks late, it had to agree "not to be the lone holdout" on any part of the text. This turned out to be "not just a theoretical limitation" - Canada was forced to "cave" on several provisions in the Intellectual Property chapter when it was the sole objector.

Geist then described how the TPP would mandate changes to Canada's criminal law and Internet governance. Although Canada currently complies with international Internet intellectual property treaties, TPP countries would have to adopt US standards for protecting digital rights management technologies, including new (to Canada) criminal provisions.

"The Trans-Pacific Partnership is best thought of as a meta-treaty," Geist then argued, "because it incorporates the ratification of nine other treaties." Finally, he addressed TPP's investor-state dispute settlement (ISDS) mechanism. "CETA's [Comprehensive Economic and Trade Agreement - a proposed free-trade agreement between Canada the European Union] ISDS is the gold standard, according to Minister Freeland. Why doesn't the TPP have the same protections for all parties?"

"I'm here to argue in favour of the TPP," was the opening statement from Daniel Schwanen, the final panelist. "We have to ask ourselves - are we in or are we out?" He likely underestimated the extent of the audience's hostility to his position. "OUT!!!" the crowd shouted back, emphatically.

For a person dedicated to defending the TPP, his endorsement was surprisingly lukewarm. "Incomes will be raised on average as a result," he claimed. "Not a lot, but a bit." He didn't address any of the particular concerns raised by Jerry Diaz, nor the structural issues brought up by Michael Geist. His brief address was centred on the economic benefits of a generic free trade agreement, with nothing (beyond naming some of the countries that are part of the agreement) that was specific to the TPP. He closed with, "There will be losers from the TPP, but they will lose anyway - and they will lose less if we are in. There will be many more winners." He received some polite applause.

The microphones were then opened to the audience. There were dozens of people who wanted their voices heard - I was one of them - and every single individual was vehement in their opposition to the Trans-Pacific Partnership. Throughout, Minister Freeland sat and listened attentively, smiling and nodding consistently. I have no idea what her opinion of the TPP is.

I prepared the remarks below to read to Minister Freeland. I extemporaneously omitted about a third to reduce duplication with issues already raised by Michael Geist. There were gasps of horror as I read the first paragraph below, and a spontaneous ovation as I finished the third.

Ms. Freeland,

My name is Leslie Rosenblood, a constituent of your riding, University-Rosedale. I am generally against tariffs and protectionism and believe free trade is beneficial to all parties involved.

The Trans-Pacific Partnership is primarily an intellectual property treaty. Secondarily it functions as a profit protection plan for multinational corporations. Only incidentally does the TPP lower tariffs and trade barriers.

Therefore, as an anti-protectionist, pro-free trade citizen of Canada, I am staunchly against our participation in the Trans-Pacific Partnership.

The major thrust of the TPP is the regulation of intellectual property. It demands that Canada extend copyright protection by twenty years – retroactively. While some level of copyright is legitimate to properly reward creators for their successful efforts, I have two major issues with the changes TPP demands of Canada’s copyright regime:
  1. At the life of the author plus 50 years, Canada already provides ample compensation to its writers, and their descendants. We are currently in compliance with existing global treaties and consistent with a majority of TPP countries, including Japan and New Zealand. No academic study has concluded that extending copyright protection for another twenty years would increase incentives to create by any meaningful extent. We would be extending a government-mandated monopoly for no societal benefit.
  2. The increase is retroactive. There is no rational basis for this. By implementing the Trans-Pacific Partnership, Canada would create a decades-long desert during which no Canadian works come into the public domain. Marshal McLuhan will not write a single additional word by extending copyright to life plus 70 years; yet we are contemplating depriving publishers, scholars, and historians unfettered access to important cultural works.
Similarly, history shows that increasing patent protection does not lead to increased investment, research, or innovation in Canada; for example, despite meeting pharmaceutical company demands for additional patent protection in exchange for agreements to provide high-value jobs in Canada, drug company research and development in this nation, as a percentage of sales, has steadily decreased in recent decades.

Extending patents to cover the time required to approve them, and the additional, special data protections given to biologics, is nonsensical – it will increase costs to Canadian companies, consumers, and the Canadian government. I agree that patents are a necessary restraint of trade to incent and reward innovators. Patents must be temporary to allow the next generation of inventors to have as large a pool of knowledge, tools, and techniques to draw from as possible as they make discoveries, acquire insights, and create technologies. This in turn will lead to further research, entrepreneurship, and economic growth.

As a government with a Ministry of Innovation, Science, and Economic Development, surely you must realize that sustainable economic growth comes from widely distributed opportunities, not avenues of profit available to only a few. That is why competitive markets serve the public better than monopolies or oligopolies.

The secondary effect of the Trans-Pacific Partnership would be a corporate profit protection plan. Companies that innovate and produce goods and services that people want at a price that is both compelling to consumers and profitable to provide, deserve their riches. Business is, however, an inherently risky undertaking – and it is only a fiercely protectionist mentality that can justify offloading risk onto governments. Laws, regulations, and taxation levels change over time – and companies should be able to adapt to new circumstances. Obtaining putative future profits today - from governments - via treaties that enshrine current business practices as sacrosanct is the opposite of how a market economy should function.

Minister Freeland, you noted in an interview with Maclean’s earlier this year that the Canada-EU Trade Agreement was “gold-plated” and that “The core notion of having a dispute-resolution process is not to supersede that right to regulate — it is to ensure that governments don’t discriminate against foreign investors.” This may apply to CETA, but the TPP opens the door for corporations to sue participating governments for regulating according to the public interest if predicted future profit streams are potentially diminished as a result.

Canadian investors have an awful track record with existing investor-state dispute settlement bodies, losing over 90% of their cases. Our record defending complaints is not much better – Canada may be forced to pay half a billion dollars to Eli Lilly because the company disagreed with a Canadian court’s ruling about the validity of two patents. Canada can expect to be subject many more such payments if we join the TPP.

It is not in Canada’s interest to expose itself to enormous liability for every future legal or regulatory change.

We already have free trade agreements with the United States, Mexico, Chile, and Peru – five of the twelve countries in the TPP. We have ongoing free trade negotiations with Japan, the largest remaining TPP economy. While I welcome lower tariffs, marginal improvements in trade with distant countries such as Australia and Brunei are not worth – not by several orders of magnitude – the enormous costs involved in accepting the TPP’s numerous protectionist and anti-competitive provisions.

For the sake of an innovative, dynamic, and prosperous Canada – Minister Freeland, I urge you not to ratify the Trans-Pacific Partnership.