2018 was touted as the year the Supreme Court of Canada would consider how religious freedom should be valued as a right guaranteed by the Canadian Charter of Rights and Freedoms. The Supreme Court rendered three highly anticipated decisions which received a great deal of press. Two of the decisions relate to Trinity Western University’s attempt to uphold religious values within its student body in the face of societal opposition to the university’s refusal to embrace diversity in sexual orientation, as expressed by the Law Societies of British Columbia, Nova Scotia and Ontario. The third decision considered whether the decision of a Jehovah’s Witnesses congregation to disfellowship a congregant could be subjected to judicial review and whether it needed to be accorded religious freedom as a result of the Charter or could be subjected to judicial review.
Ultimately, the Supreme Court relied upon administrative law concepts and rules to resolve both of these situations. In doing so, the much anticipated adjudication or balancing of religious freedom against other interests (procedural fairness and property rights in the Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall case and sexual orientation values in the Trinity Western University cases) never really occurred. Those harder questions were side-stepped.
The primacy of administrative law is both clearer and predictable in the Wall case. The primary question to be determined was whether the removal of Mr. Wall by his congregation from fellowship for sin and unrepentant behaviour had been carried out in a procedurally fair manner. His court application was founded on a clearly administrative law process and remedy – judicial review. Before any religious freedom issues were engaged, the court had to determine whether the congregation’s decision was even subject to judicial review. After it was clear that judicial review was available to Mr. Wall, the question of whether a court should or is entitled to interfere in the decisions of a religious organization was considered.
Mr. Wall was clever enough to augment his case by asserting a property right. He argued that as a real estate agent, he was reliant upon clients who were largely members of the congregation and that the shunning he experienced as a result of the disfellowship affected his ability to make a living. That argument, and the fact that his daughter and wife would also have been required to shun him as a result of his expulsion from the congregation, made for a sympathetic situation that clearly influenced the decisions of the Alberta Court of Queen’s Bench and the majority of the Court of Appeal of Alberta. Those decisions permitted review of the disfellowship decision for procedural fairness, after also finding that all internal remedies had been fully exhausted. There was, however, a vigorous dissent at the Court of Appeal and, of course, the Supreme Court agreed to hear the appeal.
The Supreme Court of Canada was unanimous in its decision that judicial review is not available for private associations such as this congregation. The primary basis for the decision was that the congregation’s decision is not a state decision to which judicial review applies. Any suggestion that a private association is subject to judicial review because it is incorporated was rejected. Simple incorporation and presumably taking advantage of legislative provisions like charitable registration will not render a private association into a public actor whose decisions can be judicially reviewed by the courts. It is also clear that a private association’s impact on the public does not imbue that organization’s decisions with the character of a public or state decision.
The Court also considered whether there was a separate civil or property right in this case, but found that there was no contract in place which would have allowed Mr. Wall any separate right to have the courts review the decision of the church. The Supreme Court has made it clear that judicial review is reserved for state decisions, consistent with what, at least, this author would have predicted for this case.
The Supreme Court then went on, in what is probably obiter dicta (an incidental analysis that does not establish a legal precedent), to discuss what would happen if there had been jurisdiction for it to judicially review the congregation’s decision. Framed in the legal term “justiciability”, this discussion focused on whether the issue is one that is appropriate for a court to decide. The Supreme Court did indicate that courts have neither the legitimacy nor the institutional capacity to decide on doctrinal matters generally. However, it left open the prospect that if Mr. Wall had been able to show there was a contractual right to have the procedural rules applied to the decision, the Court would have reviewed it. That opening should cause religious organizations to consider whether their structure does, intentionally or not, create such a contractual right.
The Court completed its discussion by addressing the suggestion that the Charter rights of ‘freedom of religion and association’ should inform the Court’s decision. It disposed of these suggestions by holding that the Charter is simply not applicable to private litigation. It held that “religious groups are free to determine their own membership and rules; courts will not intervene in such matters save where it is necessary to resolve an underlying legal dispute.” The matter therefore did not involve any balancing of religious freedom rights against procedural fairness.
Trinity Western University
The Trinity Western University law school court challenges looked more likely to involve consideration and a careful balancing of the competing Charter rights and values: ‘freedom of religion and association’ versus ‘freedom from discrimination on the basis of sexual orientation.’
Trinity Western University, a private religious university in British Columbia, required its students to sign a Community Covenant in order to attend the university. The Community Covenant expressed the religious beliefs of the university and included the statement that sexual relations are only for those within a marital relationship involving one man and one woman. The regulatory bodies for lawyers in British Columbia, Ontario and Nova Scotia determined that this was discriminatory and refused accreditation of the university’s law school, making it impossible for graduates to become lawyers in those provinces.
The Nova Scotia Barristers’ Society case was finally decided on administrative law principles in 2016. The Society’s regulations originally recognized any law degree granted by any university approved by the Federation of Law Societies of Canada. Trinity Western University’s law school had been approved. The Society then amended its regulations to purportedly give its Council the right to determine whether a law school “unlawfully discriminates…on grounds prohibited by either the Charter of Rights and Freedoms and the Nova Scotia Human Rights Act” and excluded any such law school from being recognized. The Nova Scotia Court of Appeal determined that there was nothing in the Society’s enacting and empowering legislation that allowed its Council to become a human rights tribunal that could assess either the Charter or the Nova Scotia Human Rights Act. The Court noted that the university was a private actor to which the Charter did not apply, that its activities take place in British Columbia, a province in which the Society has no nexus or authority, and that there already was a Nova Scotia Human Rights Commission charged with considering breaches of the Nova Scotia Human Rights Act. It was thus held that the amended regulation which allowed the Barristers’ Society to exclude Trinity Western University was ultra vires (beyond its legal power or authority).
British Columbia and Ontario
The British Columbia and Ontario courts used a much more direct approach and their decisions were considered by the Supreme Court of Canada in 2018. As previously reported, the decision of the majority of the Supreme Court was to uphold those decisions. In coming to that conclusion, the Court relied on a test that has been carved out for use only by administrative tribunals. The Doré Test is an exception to the normal Charter of Rights and Freedoms test applied when assessing whether a state activity or enactment that contravenes a Charter right can be saved on the basis that it imposes “a reasonable limit…as can be demonstrably justified in a free and democratic society.”
The normal test, the Oakes Test, is a two-part balancing test for determining whether a government can justify a law which infringes a Charter right:
- The government must establish that the law has a goal that is both “pressing and substantial.”
- The Court then applies three sub-tests:
- Is there is a rational connection between the law’s purpose and the provision which impacts the Charter right?
- Does the state action or provision minimally impair the violated Charter right?
- Is the effect of the state action appropriately proportional? Put it in another way, is the infringement of the Charter right too high of a price to pay for whatever societal good the state action is aimed at?
That analysis would have pitched the competing rights against each other and required a balancing of the different interests and rights.
However, the Doré Test is quite different. Traditionally, administrative law has involved the review of actions by decision makers who have particular expertise in their subject matter and extensive experience in dealing with the legislation and regulations they regularly consider. As a result of that expertise, courts have chosen to defer to their decisions in many situations rather than override them. The primary mechanism used to provide “deference” is the application of a different standard of review. Instead of determining whether the decision is correct, a court will only overturn it if it was “unreasonable.” The administrative tribunal’s decision does not have to be correct or right. Demonstrating that a decision was unreasonable is significantly more difficult than convincing a court that the decision was incorrect.
Indeed that is what occurred here. Most of the Supreme Court of Canada justices found that the Law Societies’ decisions were not “unreasonable.” The significance of the result once the Doré Test was applied to this case is highlighted by the dissenting justices, who criticized its use, as it has generally been established as the appropriate test to apply to administrative tribunals.
One potential action step for any organization, including religious organizations, is a review of its documentation to determine whether there is any basis for an allegation that an agreement or contract allows its members to assert a right for court review.
While there has been much anticipation that these three Supreme Court of Canada decisions would consider collectively how religious freedom and freedom of association rights should be balanced against procedural fairness, property rights and Canadian society’s recognition and preference for allowing diverse sexual orientation, that did not occur. The use of administrative law principles allowed decisions which did not fully grapple with the much more difficult task of determining an appropriate balance.