On June 15, 2018, the Supreme Court of Canada released its much-anticipated decisions in Trinity Western University v. Law Society of Upper Canada (2018 SCC 33) and Law Society of British Columbia v. Trinity Western University (2018 SCC 32).
The Court considered a Charter of Rights and Freedoms (Charter) challenge by Trinity Western University (TWU) against the decisions of the Law Society of Upper Canada (LSUC) and the Law Society of British Columbia (LSBC) denying accreditation to Trinity Western University Law School. TWU is a Christian university in Langley, BC, that had sought to establish a law school and had applied for accreditation from provincial law societies. Students wishing to attend the law school would have to commit to TWU’s religiously-based Covenant, which among other things prohibited sexual intimacy outside of a marriage between a man and a woman. LSUC and LSBC had each concluded that equal access to the profession, diversity within the Bar and preventing harm to LGBTQ law students were within the Benchers’ overarching objective of protecting the public interest when determining whether a particular law school should be accredited for the purposes of practicing law within the province. Citing these concerns they each denied accreditation to TWU. TWU argued that these decisions infringed TWU’s right to freedom of religion under the Charter.
The lower court decisions in BC and Ontario differed. The BC Supreme Court and Court of Appeal found in favour of TWU. The courts in Ontario found in favour of LSUC in denying TWU’s application for accreditation.
A 7-2 majority of the Supreme Court of Canada upheld the decisions of the LSUC and LSBC denying accreditation to the TWU Law School. The Court agreed that the decisions infringed the TWU community’s freedom of religion. The key question for the majority was whether infringement on religious freedom was reasonable and struck an appropriate balance with the law societies’ statutory mandate. The majority stated that the law societies derive their authority to accredit law schools (which in turn enables graduates to practice law) from provincial statutes, and held that it was appropriate in carrying out their statutory duties for the law societies to consider the overarching objective of protecting the public interest. They concluded this consideration included the promotion of equality and preventing inequitable barriers to entry into the legal profession, promoting diversity in the legal profession, and preventing harm to LGBTQ individuals.
The majority of the Court accepted that the law societies had struck a reasonable balance between religious freedom and their statutory mandate. It found that the denial was a minimal infringement on freedom of religion as the mandatory Covenant was not essential to studying law in a Christian environment. It also found that the decision significantly advanced the statutory objective of ensuring equal access to the legal profession.
Two justices of the Court, Justices Côté and Brown, dissented from the majority decision. They saw a narrower statutory mandate for the law societies. In their view, the law societies’ mandate was limited to ensuring that graduates of the law school were fit to be licensed to practice law (i.e., competent). They also considered the denial of accreditation to be an infringement on the TWU community’s freedom of religion. They stated that even accepting that the law societies had a duty to consider the public interest, this would not have been inconsistent with accrediting the TWU Law School as the accommodation of difference serves the public interest. They stated that the Charter exists to protect rights holders from majoritarian values, not to force conformance to those values.
In response to the decision, TWU has stated that it will not be starting a law school in the near future.
The Court received submissions from numerous interveners on both sides of the issue. Not unexpectedly, some have applauded the Court’s support of diversity and equality in the legal profession while others have criticized what they see as an unreasonable limit on the freedom of religion and in fact a curtailing of diversity.
There are, of course, various other areas of law where religious and equality rights intersect and sometimes conflict with each other. Many of these are relevant to the social impact sector. There will be great interest in the implications of this decision on these areas in the future. It is the nature of Canada’s Charter of Rights and Freedoms that the Courts will continue to provide guidance on the balancing of these rights into the future.