Two recent decisions of the Supreme Court of Canada that dealt with the balancing of freedom of religion and the ability of Law Societies under their public interest mandates to deal with discrimination, has generated considerable debate in Canada and will be of interest to lawyers and legal institutions throughout the Commonwealth.
Trinity Western University (TWU) is an evangelical Christian university that required all of its staff and students to sign a “Community Covenant” under which they agreed that the only healthy form of sexuality occurs in a marriage between a man and a woman, and that they abstain from sexual intimacy outside marriage, and even inside marriage in the case of same – sex marriages. A breach of the covenant could lead to sanctions, up to and including expulsion from the university.
TWU wants to establish a law school. It sought to have its law programme accredited so that its graduates would be eligible for admission to practice in all provinces and territories in Canada. The Law Societies of each province and territory in Canada control accreditation and admission to practice in their respective jurisdictions. TWU brought court challenges against three Law Societies -the Law Society of Upper Canada (now the Law Society of Ontario) the Law Society of British Columbia, and the Barristers’ Society of Nova Scotia, each of which had refused to accredit TWU’s law programme. The refusals were based on determinations by each Law Society that it would not be in the public interest to accredit a law school that had a discriminatory admissions policy. (The refusals were NOT based on concerns about the quality of the legal education TWU’s students would receive).
The Nova Scotia challenge did not proceed after the decision of the Court of first instance. The other two challenges proceeded through appellate courts to the Supreme Court of Canada.
In its decisions in Law Society of British Columbia v. Trinity Western University 2018 SCC 32, https://scc-csc.lexum.com/scc-csc/scc-l-csc-a/en/item/16437/ , and Trinity Western University v. Law Society of Upper Canada 2018 SCC 33, https://scc-csc.lexum.com/bcc-csc/scc-csc/en/item/17141/
(both June 15, 2018), a majority of the Supreme Court held that the Law Societies, under their statutory mandates to protect the public interest, have an overarching interest in protecting the values of equality and human rights. The Court found that the decisions to refuse to accredit TWU represented a proportionate balance between any limitation on the freedom of religion of the TWU Community (freedom of religion is protected under subsection 2(a) of the Canadian Charter of Rights and Freedoms) and the public interest statutory objectives that each Law Society was seeking to protect. The Court found that these objectives could and did include equal access to the legal profession, diversity within the bar, and the prevention of harm to LGBTQ students.
The decisions have attracted considerable commentary, both supportive and critical, for their expansive interpretation of Law Society mandates, and the relatively limited scope of the freedom of religion of the TWU Community in this context.
Shortly after the decisions were published, TWU announced that adherence to its “Community Covenant” would no longer be required of students at the university but would be voluntary. The future of TWU’s law school plans is not yet certain. This article was written by Robert G Lapper, one of our Americas Hub Members
Robert Lapper is a semi-retired lawyer who was most recently the CEO of the Law Society of Ontario, following a career as a senior lawyer and Deputy Minister in British Columbia.