Last week the Ontario Court of Appeal (ONCA) heard the Trinity Western University’s case for why the Law Society of Upper Canada (LSUC) was “incorrect” and “unreasonable” in refusing accreditation to its law school. Now, according to lawyers acting on behalf of Trinity Western, a private evangelical institution of higher learning located in Langley, BC, it is likely that university’s struggle to accredit its law school will continue at the Supreme Court of Canada.
Starting in 2012, Trinity Western began investigating the possibility of offering a Juris Doctor program in addition to its current course selection. In July of that year it submitted a proposal to the B.C. Ministry of Advanced Education and the Federation of Law Societies of Canada, which approved the university’s plan to establish a law school. However, automatic accreditation was refused by both the Law Society of Upper Canada (LSUC) and the Nova Scotia Barristers’ Society. The Law Society of British Columbia on June 11, 2014 followed suit after its members voted to reverse their initial decision to grant accreditation to Trinity Western law school. These law societies objected to Trinity Western’s “Community Covenant,” which must be signed by all students prior to their matriculation. The covenant requires attendees to promise that they will not engage in “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
Trinity Western challenged LSUC’s decision to refuse accreditation, arguing that the law society “infringed not only the appellants’ freedom of religion but also the other rights and freedoms that protect its manifestation: the freedom of expression, the freedom of association and the right to equality.” The Divisional Court found that the applicant, a prospective student of the proposed law school, had his freedom of religion under s. 2(a) of the Charter infringed by LSUC’s decision not to grant automatic accreditation but concluded that this decision represented a “proportionate balancing of Charter protections at play.” Keeping the legal profession open to everyone on an equal basis has been a long-held goal of the LSUC. This much-lauded objective would be undermined, according to the Ontario Superior Court of Justice, by exclusionary admittance procedures at accredited law schools. The Court held that while the focus has been on Trinity Western’s discriminatory treatment of LGBTQ persons, “the reality is that the discrimination inherent in the community covenant extends not only to those persons, but also to women generally; to those persons of any gender who might prefer, for their own purposes, to live in a common law relationship rather than engage in the institution of marriage; and to those persons who have other religious beliefs.” No one, according to the Court, should be forced to disavow their beliefs or “their very identity” in signing the covenant.
Trinity Western subsequently appealed to the ONCA out of concern for the protection of its minority religious views, maintaining that the freedom of religion of its prospective students has been unjustifiably infringed. Its case turns in no small part on Trinity Western University v. British Columbia College of Teachers (2001), in which the majority of the Supreme Court held that the B.C. College of Teachers (BCCT) could not refuse Trinity Western accreditation. The majority reasoned that “the restriction on freedom of religion must be justified by evidence that the exercise of this freedom of religion will, in the circumstances of this case, have a detrimental impact on the public school system.” According to the Court there was little evidence to support the BCCT’s contention that Trinity Western graduates as teachers will treat LGBTQ persons discriminatorily as a result of their education at an evangelical school. However, this case is distinguishable from the one before the ONCA because another aspect of discrimination is to be balanced against the freedom of religion, namely, discrimination which restricts the opportunities of persons targeted by the “Community Covenant” to become members of the bar. The concern which motivated the LSAC to refuse accreditation was not that Trinity Western graduates would be likely to treat LGBTQ persons unfairly, but rather that one avenue of access to the legal profession would be blocked for non-heterosexual individuals, thereby lessening their opportunities to become lawyers.
It appears that Trinity Western stands little chance of winning its appeal given the value place by the Supreme Court on equality of opportunity. At para 47 of Loyola, Dickson maintained that “religious freedom must…be understood in the context of a secular, multicultural, and democratic society with a strong interest in protecting dignity and diversity [as well as] promoting equality.” Freedom of religion has not been interpreted by Canadian courts to require active state support for religious projects, suggesting that the ONCA and Supreme Court will not compel law societies to offer automatic accreditation. Furthermore, Ivan Steel, a Toronto lawyer familiar with the case law on discrimination based on sexual orientation, opines that the jurisprudence in the area has developed substantially since the 2001 decision favouring Trinity Western’s accreditation.
Trinity Western may do best to conserve its financial resources and refrain from the temptation to seek leave to appeal to the Supreme Court as it can still run a fully Christian law school. Even if it insists on retaining its community covenant, it may nonetheless have guaranteed access to most Canadian legal markets with the exception of Ontario, BC, and Nova Scotia. However, this approach seems unlikely as Douglas Elliott, a partner in Cambridge LLP, suggests that Trinity Western has “got too much at stake to leave this [case] alone” and that it will doubtlessly appeal an unfavourable Court of Appeal decision. Given Trinity Western’s determination to see its case all the way through to the highest court, we as legal observers can look forward to some clarification of how the Supreme Court will handle its 2001 decision in light of the attitudinal and legal changes that have occurred since then.
This blog post was written by a CCLA RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.