Trinity Western University files Factum in Supreme Court Appeal

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Trinity Western University is the first party to file its factum in its appeal to the Supreme Court of Canada in the case of Trinity Western University v. Law Society of Upper Canada.

As has been discussed previously on Rightswatch, Trinity Western University (“TWU”) is a private Evangelical Christian University based in British Columbia. As a reflection of this religious identity, TWU students are required to sign a “Community Covenant,” which makes a student’s enrolment in the university contingent on their abiding by a self-described Christian lifestyle. The Covenant includes a requirement that students abstain from any sexual relations outside of marriage, which is defined as being solely between a man and a woman. When TWU began to seek accreditation as a law school, this specific provision was described by three provincial Law Societies as discriminatory towards the LGBTQ community, which led to a refusal of accreditation.

While the University has successfully challenged refusals in the British Columbia Court of Appeal and the Nova Scotia Court of Appeal, the Ontario Court of Appeal upheld a lower court decision stating that the Law Society of Upper Canada’s decision to refuse accreditation was reasonable. This decision had the effect of barring graduates of TWU’s law school from practicing law in Canada’s most populous province. TWU appealed that decision to the Supreme Court of Canada, which granted leave to appeal in February 2017.

According to its factum, TWU’s argument at trial will assert that the LSUC’s decision infringed the Charter rights of both its students and Brayden Volkenant—an evangelical Christian, graduate of TWU’s Bachelor of Arts program, and a law student at the University of Alberta. Following on this point, the ONCA used the wrong standard by stating that this infringement was reasonable—as opposed to determining whether this infringement represented a minimal impairment on the right. “The result was that the Court of Appeal applied a standard that was overly deferential in the circumstances and more accepting of Charter breaches.” (para 46)

At the same time, TWU’s factum represents an attempt to shift the law determining how administrative decisions are subjected to Charter scrutiny. Without going into too much detail, TWU is arguing that the legal test used to analyze whether the decision of administrative bodies is too flexible and deferential, and fails to sufficiently guarantee Charter rights: “Under Oakes, the state must ensure that Charter breaches are ‘demonstrably justified’ under section 1 of the Charter. In administrative law, applicants must show a decision is unreasonable, reversing the onus under Oakes.” (para 53) Hence the argument that a Charter analysis of an administrative decision should incorporate the rigour of the Oakes criteria—and specifically the need for a rational connection between purpose and effect.

While other points are made—such as the argument that there are no conflicting rights in this case, no “clash” between its students’ right to freedom of religion and the LGBTQ community’s right to equality—it is, perhaps, equally likely as not that the question of review will be what decides this case. Put another way, it remains to be seen whether this case will provide an opportunity to refashion how administrative decisions are subjected to Charter scrutiny.

This blog post was written by a CCLA summer student. Views expressed do not necessarily reflect the view of the CCLA.

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