Home »Communications > Articles > June 2018 > Making Sense of the TWU Court Decision Part One

Making Sense of the TWU Court Decision Part One

21 June 2018

Theme:

The recent Supreme Court decision in the Trinity Western University (TWU) case concerns whether two provincial law societies must accredit TWU’s proposed law school. It is a long and complex decision of 256 pages involving four opinions among the nine justices.

The first part of this overview will focus on the majority decision of five of the nine justices. The two law societies were addressed in two cases that were heard at the same time, involving the Law Society of British Columbia (LSBC) and the Law Society of Upper Canada (LSUC) in Ontario. The Court dealt with the LSBC case first and applied their conclusions to their decisions in the LSUC case.

The Canadian Federation of Law Societies approved TWU’s law school, but three provincial law societies objected because of TWU’s mandatory community covenant that each student is required to sign. Students are not required to sign a statement of faith, so not all students will be Christians, but all are expected to abide by this covenant which governs conduct and is rooted in the Christian faith. Among other things, this covenant restricts sexual intimacy to married heterosexual couples. The three law societies felt this would be discriminatory towards gay and lesbian students and create a barrier for them to attend and as a result they would not have equal access to all law school spaces.

Part One: The Majority Decision

In the majority decision, the five justices said they were not addressing the issue of whether TWU could have a law school generally. Rather they focussed on two areas:

whether a law society has the authority to consider the admissions criteria of law schools, and in this case, TWU’s covenant in their assessment of the law school;
whether the refusal to accredit was a reasonable and proportionate balance between the rights protected in the Canadian Charter of Rights and Freedoms at issue in the case, namely the religious freedom of students wishing to attend a Christian law school, and the statutory objectives of the law societies.

The majority found that it is a legitimate part of the law society’s mandate to assess the admissions policy of TWU and, more generally, to preserve and protect “the rights and freedoms of all persons.” The mandate includes the objective of “protecting the public interest in determining the requirements for admission to the profession, including whether to approve a particular law school.” The concern was that the requirement of the mandatory covenant, particularly the section restricting sexual intimacy to marriages of one man and one woman, would dissuade prospective gay and lesbian students from attending. These students would not have the same level of access as other students to the limited number of law school spaces available in Canada.

The majority found that the covenant was an inequitable barrier on entry to the school, hence to the profession, and the law societies were entitled to consider any barrier to admission. In reaching this conclusion, they said that the LSBC as a public actor must comply with the Charter and its values, or “Charter values . . . [which] underpin each right and give it meaning.” The LSBC was “entitled to consider an admissions policy that imposes inequitable and harmful barriers to entry” and assess the policy with respect to these values and any potential harm the policy might cause (paragraph 47).

In the decision, the majority affirmed that TWU was not in breach of any law, including the human rights codes that apply to it in B.C.

They also affirmed that the freedom of religion of the TWU community is engaged. However, the court focused on the religious freedom of the members of TWU community, and did not consider whether TWU as an institution possessed rights under the Charter.

The majority acknowledged the importance of religious freedom and that this freedom includes both religious beliefs and relationships. Quoting from the court’s 2015 decision in the Loyola case, they wrote: “The protection of individual religious rights under the s. 2(a) must therefore account for the socially embedded nature of religious belief, as well as the ‘deep linkages between this belief and it manifestations through communal institutions and traditions’” (paragraph 64).

While they affirmed that Evangelicals “believe that studying in a religious environment can help them grow spiritually” and that the covenant contributes to this objective, the issue was whether there was a proportionate balance between the degree of the infringement of the religious freedom of the students if accreditation was denied, and the statutory mandate of the law society. And, they examined whether there was another reasonable option that would “reduce the impact on the protected rights while permitting the furtherance of the statutory objective” (paragraph 81).

They concluded that the law society had only two options since TWU was unwilling to amend its covenant: to accredit or not accredit. They also concluded that based on the testimony of some prospective law students “a mandatory covenant is not absolutely required for the religious practise at issue: namely, to study law in a Christian learning environment” (paragraph 87). A law society decision not to accredit only “prevents prospective students from studying law in their optimal religious learning environment” but does not prevent them from studying or practising law. The court concluded that “studying law in a learning environment infused with the community’s religious beliefs” was what Christian students “preferred (rather than necessary) for their spiritual growth” (paragraph 88).

The majority said most LGBTQ students would find the covenant to be a deterrent to applying to the law school, and part of the law societies’ mandate is to ensure there is open and equitable access to the law schools it accredits. The covenant restricts the conduct of those who do not share religious beliefs and has the effect of imposing religious beliefs on others.

They wrote: “Freedom of religion protects the rights of religious adherents to hold and express beliefs through both individual and communal practices. Where a religious practice impacts others, however, this can be taken into account at the balancing stage” (paragraph 99).

In weighing the religious freedom of students and the statutory obligation of the LSBC, they concluded the refusal to accredit was a proportionate and a reasonable conclusion.

“In the end, it cannot be said that the denial of approval is a serious limitation on the religious rights of the members of the TWU community. The LSBC’s decision does not supress TWU’s religious difference. Except for the limitation we have identified, no evangelical is denied the right to practise his or her religion as and where they choose” (paragraph 102).