Nick Papageorge (2L)
Trinity Western University, in Langley, British Columbia, is “Canada’s largest independent Christian liberal arts institution.” It is also at the heart of one of Canada’s largest contemporary legal debates.
In June 2012, the university expressed its desire to open a law school, and it submitted a proposal to the Federation of Law Societies of Canada. The Federation scrutinized the Community Covenant that all TWU students must sign and adhere to upon admission, which includes a requirement that students refrain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
In 2013, the Federation gave preliminary approval to the proposed law school in light of a commitment by TWU to meet all of its public and legal obligations of non-discrimination. Some provincial law societies subsequently deferred to the Federation and accredited the law school; others, most notably in Ontario and British Columbia, declined to do so. Trinity Western challenged these refusals in court.
In a unanimous ruling this past June, the Ontario Court of Appeal upheld the decision of the Law Society of Upper Canada (LSUC) not to accredit. The Court was impressed by the comprehensive approach taken by the Law Society in its deliberations. Writing for the Court, McPherson J. stated: “[T]he process adopted by the LSUC…was excellent. The record consisted of TWU’s application and supporting material, the relevant reports of the [Federation], three legal opinions designed to provide guidance to the benchers in their deliberative process, and approximately 210 submissions from members of the profession and the public.” As such, the LSUC had discharged its administrative law obligations and its decision was ruled to have been “clearly” reasonable.
The court nevertheless examined the competing Charter values before reaching this conclusion: “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.” In essence, the potential inability of a TWU graduate to practice law in Ontario was outweighed by the deeply hurtful and discriminatory language of the Covenant.
A unanimous five-judge panel of the British Columbia Court of Appeal came to a resoundingly different conclusion. It first found that the Benchers of the Law Society of British Columbia had abdicated their duty as an administrative body by putting the matter of accreditation to a members’ referendum and agreeing to be bound by the results. The Benchers were chastised for failing to engage “in any exploration of how the Charter values at issue could be best protected.” The court thus ruled that it owed no deference to their decision.
The court then undertook a thorough examination of the Charter issues at play, quoting extensively from Doré, Loyola High School, Oakes, Big M Drug Mart, and other Supreme Court decisions. It held that proportionality was essential, and that an administrative body must ensure it “interferes with the relevant Charter guarantee no more than is necessary given the statutory objectives.” It also emphasized the need for a pluralistic society to respect religious differences and not interfere with them “unless they conflict with or harm overriding public interests.”
The court found that, as a private university, Trinity Western’s admissions policy and its choice to adopt a voluntary code of conduct did not amount to “unlawful discrimination.” It stressed that “the impact of an administrative decision must be assessed on the basis of ‘concrete evidence’, not conjecture” and found no such evidence of harm in this case.
In a direct swipe at the ONCA’s preoccupation with the hurtful and discriminatory nature of the Covenant, the BCCA stated: “[T]here is no Charter or other legal right to be free from views that offend and contradict an individual’s strongly held beliefs, absent the kind of ‘hate speech’ […] that could incite harm against others. Disagreement and discomfort with the views of others is unavoidable in a free and democratic society.”
It concluded that the interference with Trinity Western’s freedom of religion was substantial: the decision by the Law Society was tantamount to preventing TWU from operating a law school, thereby preventing it from exercising its religious freedom. Conversely, accreditation would not reduce access to law schools for LGBTQ students: while they would not likely seek spots at TWU, students who would otherwise go elsewhere for law school would seek those spots, making the impact neutral.
With two major courts of appeal at antipodes over the correct outcome, Trinity Western is destined to get its day in the Supreme Court. To find out what we might expect from that inevitable ruling, I sat down with our resident constitutional law scholar, Professor David Schneiderman.
“In this one, to be honest with you, I’m torn,” he conceded. “I’m genuinely feeling a bit torn.” As a civil libertarian, he tends to favour robust accommodations for religious groups. However, the conflict between s. 15 and s. 2(a) is nothing new, and he observed that the former “often wins out against liberty claims”—which, he added, is not always a good thing.
He also thinks the nature of the disagreement—accrediting a law school—could be significant for the Court. “They might say that law schools are special,” he suggested. “Judges have been to law school, they still have a relationship with law schools, they feel empowered to scrutinize what’s going on in law schools. So it might be that they’ll say law schools are the place where you have to teach fidelity to the rule of law, and therefore the Community Covenant and Trinity Western have to be compliant with the law.”
However, Prof. Schneiderman felt he did not know this Court well enough, given the number of recent appointments, to offer a concrete prediction. “Judges are pretty conservative folks,” he noted. As such, his intuition indicated that the Court might follow its 2001 decision in Trinity Western University v College of Teachers (British Columbia), which both appellate courts referred to but ruled was not determinative of the case at bar.
“If I was going to predict, I might predict a replay of TWU v BCCT,” Prof. Schneiderman mused. “They’ll say, ‘You can teach people whatever you want. It’s when they come out and they start practicing that we will then police their conduct.’ There’s a serious infringement of freedom of religion. There might be some hard feelings on the part of gay and lesbian students, but they’ll be protected once the [TWU] students enter the legal profession. That’s what you might get.”
One thing Prof. Schneiderman is sure of is that this will be a high-profile case and the Supreme Court Justices will be well aware of that. “It’s going to be the case of the year whenever it goes up.”