By Agnieszka Krawczynski, B.C. Catholic
and Deborah Gyapong, Canadian Catholic News
Archbishop J. Michael Miller is disappointed with the news
from the Supreme Court of Canada today.
“I am saddened to see the Supreme Court of Canada’s Trinity Western University law school decision, with its potential to undermine freedom of religion, conscience, and association in Canada,” he said in a statement June 15.
The Supreme Court of Canada delivered a serious blow Friday to Trinity Western University’s proposed law school, by siding with the law societies that refused it accreditation.
The law societies of Ontario and British Columbia had refused to accept future law school graduates because the privately funded, evangelical Christian university in Langley has a community covenant that prohibits sexual activity outside of traditional marriage.
In 7-2 decisions, the majority of Supreme Court justices ruled the covenant discriminated against equal access to the law profession by LGBTQ law students. Though six of the nine justices ruled religious freedom was engaged – one said it was not engaged – they argued the law societies had proportionately balanced competing charter rights.
“The decision runs counter to Canada’s tradition of balancing rights and freedoms, and the implications of this decision for constitutional freedoms in Canada are severe,” said Archbishop Miller.
“The Court’s willingness to disregard the Charter of Rights and Freedoms means the threat of state influence expanding beyond its authority is increasing. The Court is allowing governments and government-mandated regulators to decide which beliefs and values are favoured in society, narrowing pluralism and freedom of conscience, beliefs, and thought in a serious way. I believe the Court has erred in breaking with precedent, threatening fundamental human rights in Canada.”
The Supreme Court released two TWU decisions because the Law Society of Upper Canada (LSUC) had won at both lower court levels, while the B.C. Law Society had lost at both levels.
At issue was a balancing of the charter rights of religious freedom and freedom of association with the public interest statutory objectives of Ontario’s law society.
“In our respectful view, the LSUC’s decision not to accredit TWU’s proposed law school represents a proportionate balance between the limitation on the Charter right at issue and the statutory objectives the LSUC sought to pursue,” the majority wrote in dismissing TWU’s appeal of the Ontario Court of Appeal decision. “The LSUC’s decision was therefore reasonable.”
“In our view, the LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest in the accreditation context, which necessarily includes upholding a positive public perception of the legal profession,” the majority ruled in the Ontario case. “To begin, it is inimical to the integrity of the legal profession to limit access on the basis of personal characteristics.”. “As a public actor, the LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions.”
“This is especially so in light of the societal trust enjoyed by the legal profession,” the decision said. “As a public actor, the LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions.”
The majority ruled the LSUC’s decision “only interferes with TWU’s ability to operate a law school governed by the mandatory covenant,” viewing it as a minor infringement, because a Christian law school could operate without a covenant.
“This limitation is of minor significance because a mandatory covenant is not absolutely required to study law in a Christian environment in which people follow certain religious rules of conduct, and attending a Christian law school is preferred, not necessary, for prospective TWU law students.”
In the B.C. decision, the majority argued “an entire law school would be closed off to the vast majority of LGBTQ individuals on the basis of their sexual identity.”
“Those who are able to sign the Covenant will be able to apply to 60 more law school seats per year, whereas those 60 seats remain effectively closed to most LGBTQ people,” the justices said.
Trinity Western, however, had argued before the courts that it does accept LGBTQ students, some of whom are evangelical Christians who abide by the covenant.
Gwendoline Alison, a lawyer for the Archdiocese of Vancouver which was an intervenor in the case, said the ruling seemed less about balancing rights, and more about prioritizing rights.
“The decision seems to take on the notion that there are some aspects of religion that aren’t quite as important as others, and it’s appropriate for the court to wade in on issues,” she said, noting that the court was critical of TWU for refusing to reconsider its community covenant.
“It seems to give rise to some comment that the courts might be willing to wade into the internal workings of a religious group.” Alison said that, coupled with what seemed to be a “narrow description of what religious freedom is,” is alarming.
The majority, Justices Rosalie Abella, Michael Moldaver, Andromache Karakatsanis, Robert Wagner, now Chief Justice, and Clement Gascon, wrote two joint decisions, arguing while religious freedom was engaged the public interest mandates outweighed them. Justice Malcolm Rowe agreed with the majority decision, but argued in both cases religious freedom was not engaged.
Former Chief Justice Beverley McLachlin, in her final decision with the Supreme Court, wrote concurring decisions, though she said religious freedom was significantly engaged. She also referred to the 2001 decision regarding TWU and accreditation of its teacher’s college.
“In arriving at this conclusion, I am mindful of the fact that this Court has held that a decisionto deny accreditation to TWU’s school of education was unreasonable: TWU 2001,” she wrote. “That case, however, is distinguishable from the one before us. There, the College of Teachers based its claim on the concern that teachers trained at TWU would bring discrimination into the classroom.”
“The LSBC here has not impugned the competence of potential graduates from TWU,” she wrote. “Instead, it is concerned with upholding its own mandate by seeking to avoid condoning or even appearing to condone discrimination.”
Justices Suzanne Côté and Russell Brown disagreed with the majority, arguing the charter binds state actors, but “not private institutions like TWU.”
They argued the law societies should have accredited TWU’s law school, and that examining the school’s admissions policies and its covenant were beyond their public interest mandate to ensure future lawyers’ competence and conduct.
“Accommodating religious diversity is in ‘the public interest,’ broadly understood, and approving the proposed law school does not condone discrimination against LGBTQ persons,” Côté and Brown wrote. While recognizing that many LGBTQ students would choose not to attend the law school, or sign the covenant at a cost to themselves, they argued.
“In our view, however, the majority fails to appreciate that the unequal access resulting from the Covenant is a function of accommodating religious freedom, which itself advances the public interest by promoting diversity in a liberal, pluralist society.”
TWU called the Supreme Court’s decision a loss of support for diversity in Canada.
“In a very long, complex ruling, with four sets of reasons, eight of nine judges agree that TWU’s religious freedom is violated, but the majority still uphold the law societies’ decision not to approve the law school,” said president Bob Kuhn.
“Until now, Canada has always encouraged and supported the rich, cultural mosaic created by those who call Canada home. Historically, the Charter of Rights and Freedoms, together with the human rights legislation in each province, has been reflective and protective of Canada’s diversity of views, cultures, and belief systems. Sadly, the Supreme Court has decided that this protection does not extend to a law school at TWU.”
Earl Philipps, executive director of the proposed law school, called the ruling a “lost opportunity” for Canada.
“There are only three common law schools in Canada that offer a course in charity law. The TWU law school would have offered a specialty in charity law. Because Canada has the second largest charitable and non-profit sector in the world, this loss stands to impact Canadians coast to coast.”
TWU is reviewing the ruling and considering next steps.
2012 TWU begins planning to open a law school.
2013 TWU follows B.C. process for opening new post-secondary program and gets approval from the Federation of Law Societies of Canada and the B.C. Ministry of Advanced Education.
2014 Law societies study the FLSC’s decision and those in B.C., Alberta, Saskatchewan, New Brunswick, P.E.I., and Yukon approve. The Law Society of Upper Canada and the Nova Scotia Barristers’ Society reject it. Later that year, lawyers in B.C. and New Brunswick change their minds about their initial approval and the B.C. Ministry of Advanced Education follows. TWU challenges the Nova Scotia Barristers’ Society and the Law Society of B.C. in court.
2015 The Law Society of New Brunswick votes to approve the law school. Supreme Courts in B.C. and Nova Scotia rule in favour of TWU, while Ontario Divisional Court rules against. TWU appeals the Ontario ruling.
2017 The Supreme Court of Canada hears appeals from Ontario and B.C.
2018 The Supreme Court rules against TWU.
2019 Hoped-for open date of TWU law school.