“Diversity is our strength,” proclaimed Justin Trudeau. “It’s easy, in a country like Canada, to take diversity for granted. In so many ways, it’s the air we breathe,” the Prime Minister continued.

Diversity, he declared, is a “Canadian value.”

It is easy in Canada “to take diversity for granted.” We may think we understand it like “the air we breathe.” But what do we understand diversity to be?

Does our comprehension of diversity draw Canadians together or assign us to differing camps, like contradictory perspectives on “the air we breathe”? Some think little about the nature of air. Others are continually absorbed in delving into the complexity of air’s composition, and whether the quality of air is manageable or polluted, sounding alarms and demanding immediate action.

On the World Day for Cultural Diversity, Global Affairs Canada conjoined “#diversity” and “#inclusion” in tweets from home base in Ottawa and diplomatic missions around the planet. Does diversity, then, change in nature when combined with inclusion, like components of air combined as two parts hydrogen and one-part oxygen (H2O)?

In Ontario, the government-appointed body for regulation of lawyers mandated each of its members to personally “abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally.”

Is adding equality to the diversity and inclusion mix a formula for yet another composition of diversity? Equality does bring with it the distinction of being a right recognized in the Canadian Charter of Rights and Freedoms.

On June 15, 2018, the Supreme Court of Canada released two decisions that hinged on the “Charter value” of diversity. Does the Charter value differ from the Canadian value expressed by the Prime Minister? What message do we comprehend when other politicians as well as diplomats, lawyers and judges refer to “diversity”?

Those who lived in the neighbourhood where I grew up generally perceived it as diverse. My parents had come from Barbados. We also had multi-generation Canadians, immigrants from Poland, Germany, England, India, Pakistan, South Africa, the USA and more. Protestants lived side-by-side with Catholics, non-churchgoers, and people from religions about which I knew little. Mostly white-skinned, we were well seasoned with a peppering of black and brown. The boys gathered around hockey, football, baseball and sledding, and as we matured, music and girls. We got along. This diversity was our Canada.

The Canadian Charter of Rights and Freedoms was included as Part I in amendments to Canada’s Constitution in 1982.

Deliberating in a key decision on the subject of “diversity” in 2001, the Supreme Court of Canada reviewed its earlier Charter-related conclusions on the theme. In the 1996 case Ross v. New Brunswick School District No. 15, the Court found it:

… obvious that the pluralistic nature of society and the extent of diversity in Canada are important elements that must be understood by future teachers because they are the fabric of the society within which teachers operate and the reason why there is a need to respect and promote minority rights.

In order to grasp the “the fabric of [Canadian] society” it was deemed essential to understand two things: pluralism – the coexistence of people and groups from different backgrounds, with differing beliefs, opinions and practices; and, the extent of diversity in Canada. The Court observed that the path to its 1996 discernment was set in 1985 in R. v. Big M Drug Mart, its first decision on the Charter’s stated right to freedom of religion. In Big M, an expansive concept of diversity was deemed the evidence of “a truly free society.”

The 1985 Court declared:

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. 

This review of earlier verdicts led the Court to conclude in 2001, in Trinity Western University v. British Columbia College of Teachers,

The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.

Within the context of the fabric of Canadian society as a whole, the societal landscape as it was synonymously phrased, a diversity or multiplicity of organizations and views was to be expected, and respected.

In the particular case before them, the Supreme Court of Canada decided it was unreasonable for the B.C. College of Teachers to deny accreditation to a school intended to train teachers for public school classrooms simply because it was part of a private religious university community with religiously founded behavioural standards. It was one of Canada’s diversity of organizations.

The Court clarified that both the beliefs and the practices of Trinity Western’s university community were protected from interference by the government regulatory body because of the Charter right to freedom of religion. The regulator, the Court determined, was confined to assessing graduates’ academic qualifications and regulating teachers after they entered the teaching profession.

In the context of the fabric of Canadian society identified by the Supreme Court between 1985 and 2001, the Prime Minister’s words might be correct, diversity is a strength. Long held principles undergirding Canadian society cultivated the freedom required for the kind of diversity noted by the Court – a range of different beliefs and practices, variety in individual and organizational expression in Canada’s multicultural and multi-religious milieu.

The description of diversity as a societal respect for the non-conforming Canadian, or community, as depicted by the Supreme Court is more than virtuous tolerance. It is an expression of acceptance, empathy, and an attitude of fair treatment toward those who are “different,” whether the “other” be an individual or a community. The Court’s perception of diversity could certainly be described as a Canadian national strength, if indeed it was the Canadian general perception of diversity.

At some point in fairly recent Canadian history, diversity became twinned with inclusion, and the two are now rarely seen at any distance from one another. With the coupling, the understanding of diversity transitioned from the wide-ranging context of the national societal fabric to a more subjective, fluid concept for application in a narrower, one-organization-at-a-time setting.

The transition is summarily expressed in a 443-word statement made by Canada’s representative to the United Nations’ Human Rights Council in Geneva, Switzerland, on March 20 2017.  In the lead up to the UN World Day for Cultural Diversity, Canada spoke on “The Power of Inclusion and the Benefits of Diversity.” Our international position quickly rerouted from observation of diversity in the national and international context, having noted “[d]iversity is an indisputable fact … each context is unique, all communities, countries and regions of the world are diverse,” to smaller-scale obligation with the authoritatively phrased declarations:

Inclusive workplaces are more productive, and have higher employee and client satisfaction. Evidence indicates that companies with diverse boards perform better.

What does an inclusive workplace look like? What are the metrics that compare inclusion with productivity and with the satisfaction of both employees and clients? What is a diverse corporate board? How is board diversity measured against corporate performance? Are these affirmations from observation or assertions of hypotheses on the world stage?

Eight months after the Geneva statements, Ontario’s Law Society gave two months warning to members that by the end of the year each would be required to develop and “abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally,” in addition to existing expectations of adhering to the law and human rights legislation. 

Tripleting equality with already twinned diversity and inclusion seemed to further narrow the once-upon-a-not-so-distant-time-ago expansive “national fabric” conceptualization of diversity. The transition in contemplation of diversity thus journeyed from broad societal recognition, through organizational requirement of non-discrimination and affirmative pursuit of diversity and inclusion, to a compulsory personal responsibility for promotion, advancing the cause. But what cause? How is the cause defined?

In a clarifying document, the Law Society offered circular commentary as the rationale for the new requirement. The “intention of the statement of principles is to demonstrate the personal valuing of equality, diversity, and inclusion with respect to the employment of others, or in professional dealings with other licensees or any other person.” “Equality,” “diversity,” and “inclusion” were not defined by the Law Society in making this requirement of its members, lawyers.

It all seems relatively innocent, even positive and harmless, until one arrives at the realization that the government’s responsibility to accommodate a variety of cultures and institutions in the fabric of society has been incrementally reframed to redirect the responsibility from government to State-compelled endorsement and responsibility for belief in, and advancement of, the ambiguous, transitioning, and undefined concept “diversity” by private organizations and individual persons.

This is not consideration of societal values resulting in acceptance and respect for all Canadians. It is not application of the Charter to protect Canadians’ rights from government interference in the context of the national fabric. Nor is it the observation of non-discrimination in hiring or housing contemplated by provincial human rights codes. What is this new conceptualization of diversity that requires a statement of belief and commitment to promote?

Smack dab in the middle of Pride Month, on June 15 to be precise, the Supreme Court of Canada embraced the ambiguity.

That morning, the Court issued paired decisions in Law Society of British Columbia v. Trinity Western University and Trinity Western University v. Law Society of Upper Canada. In its fresh consideration of diversity, the Court moved jurisprudentially away from its historic recognition of diversity as an expression of the expansive Canadian fabric in a pluralist society. Set aside was the position on diversity that it had previously affirmed as “obvious” and “essential” to the interpretation of the Charter right to freedom of religion. 

In place of the time-honoured and steadying societal paradigm stood something more akin to the narrower organizational and personal responsibility re-conceptualization of diversity, the one fused to inclusion and equality; the diversity that is subjective and undefined. As a result, the Court deliberately chose to impose on a Canadian religious organization the constitutional responsibilities expected of a government body.

The enshrinement in Canada’s Constitution of the Canadian Charter of Rights and Freedoms was the result of a negotiation between the federal government and provincial legislatures. The Charter that emerged recognizes protections intended to ensure fair and equal treatment for all Canadians, including Canadian organizations, in regard to actions of government, and agencies authorized to act on behalf of government. 

Justice Jamie Campbell of the Nova Scotia Supreme Court followed more than three decades of judicial precedent when, in his 2015 decision in Trinity Western University v. Nova Scotia Barristers Society, he observed:

The Charter is not a blueprint for moral conformity. Its purpose is to protect the citizen from the power of the state, not to enforce compliance by citizens or private institutions with the moral judgements of the state.

Law societies are agencies authorized by provincial and territorial governments to act on government’s behalf to regulate the legal profession. Two of these government authorized agencies, from British Columbia and Ontario, ended up in the Supreme Court of Canada because they were unwilling to recognize an academically certified law school proposed by a private Christian university. Why? They objected to its religious Community Covenant setting out expected Christian behaviour for members of the university community. The Covenant includes a religiously based prohibition of sexual activity by staff or students outside of the marriage relationship between a woman and a man. 

The law societies (government agencies) made an argument not too different from that made by the government authorized agency for regulating the teachers’ profession less than two decades earlier in Trinity Western 2001. The crux of their argument was unease that establishing a law school at Trinity Western would “negatively impact equitable access to and diversity within the legal profession and would harm LGBTQ individuals, and would therefore undermine the public interest in the administration of justice.”

Let’s ponder that position on diversity. 

There are more than 120,000 lawyers in Canada – 55,000 in Ontario and 14,000 in B.C., the two law societies (out of fourteen nationwide) that ended up in the Supreme Court. There are more than 10,000 student spaces available to study common law in Canada, at 19 public universities. The private Christian university, Trinity Western, was proposing to open a 60-student law school, i.e., 20 students per year of the three year program. 

The professional anxiety expressed by these legal leaders about diversity, as presented to the Court by the two government authorized agencies, may be reduced to the question, “What kind of message would be sent to the nation if the potential for attendance at a private religious institution became the preferred or only available option to study law for one or more LGBTQ individuals who took offense with the religious university community’s beliefs and campus code of conduct?” 

The LGBTQ community was the only group out of the entire Canadian population distinguished for such consideration. Concern was not expressed about the potential impact of the Community Covenant on members of other religious communities, non-religious students, heterosexual students who are sexually active outside marriage, or the Covenant’s stated constraints on the use of “vulgar” language, tobacco and alcohol (two products as legal as same-sex marriage in Canada). 

Take a moment to reflect on a few simple questions. 

How did that sentence about conduct at a private religious school make you feel? What were your first thoughts about a religious community that has such restrictions on sex, language, tobacco and alcohol? 

What do you think of when you consider diversity? 

Do you think your neighbour’s idea of diversity aligns with yours? 

Does your understanding of diversity include that other religious community? The LGBTQ community? People with visible disabilities? Invisible disabilities? Those with different cultural and racial backgrounds than you? 

Based on your personal sense of diversity, who is welcome and who is unwelcome in your Canada? Or your line of work? Are you interested in hearing what people who are different from you have to say about who they are or is your idea of who they are sufficient for you? 

With those questions in mind, let’s go back to the law school cases.

The law societies set aside evidence about Trinity Western provided by students from other religious communities, and non-religious and LGBTQ students who had already attended the university, living by the Covenant while studying there. They had positive experiences. The Covenant, you see, also requires community members to “treat people and ideas with charity and respect.” To do justice to the Community Covenant requires reading it, not just being captivated by the hype about gay sex.

The two (out of fourteen) law societies fixed their gaze, like a horse wearing blinders in a Triple Crown race, on the improbability that one or more students from the LGBTQ community (which comprises fewer than two per cent of the Canadian population) might potentially be at risk of feeling excluded from attending law school at Trinity Western because of the religious standards of the small private Christian university. The process employed by each of the two government authorized regulatory bodies rejected the Supreme Court’s finding from 2001 that the university community’s standards were protected by the Charter’s enumerated right to “freedom of religion” as part of the “diversity of Canadian society.” 

The Supreme Court of Canada went along with the new re-characterization of diversity by the law societies, finding it a viable option, but not the only option, for the purpose of application to the legal profession, and the purpose of education for the legal profession.

Does it make sense to you that the delineation of diversity, under the rule of law or otherwise, would be different in different settings and for different professions?

I’ll seek to offer answers to that question tomorrow in part two of this essay.

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