On one hand, the decision to deny accreditation infringes upon TWU’s freedom of religion – which includes the right to operate a university for individuals who share common religious values. On the other, there is the duty of the legal profession to ensure that access to its ranks is founded on equality and merit and not discriminatory grounds.
So for people who haven’t been following the happenings regarding Trinity Western University’s Law School and the law societies in Ontario and Nova Scotia, can you catch us up? What is the general outline of the situation?
The controversy revolves around a code of student behaviour, known as the “Community Covenant”, which all TWU students are required to read, understand and consent to. The Community Covenant derives its precepts from a number of Biblical moral concepts which include abstaining from “sexual intimacy that violates the sacredness of marriage between a man and a woman”. To the extent that we don’t expect people to suppress their sexual identity, the Community Covenant effectively prohibits LGBTQ students from enrolling at the university.
In 2012, TWU proposed to open a law school. The Nova Scotia Barristers’ society, Law Society of Upper Canada (which governs the legal profession in Ontario) and Law Society of British Columbia all resolved to refuse accreditation of the law school. Given Ontario’s stature as the country’s largest legal market and the fact that many TWU grads would likely apply to jobs in their home market of British Columbia, allowing these decisions to stand would substantially devalue the school’s Juris Doctor degrees.
TWU challenged the decision of each governing body in court. In Ontario, the Ontario Superior Court found the decision of LSUC reasonable in light of the spectrum of public interest considerations it took into account. That decision was upheld by the Ontario Court of Appeal. The opposite results were reached in Nova Scotia; both the Supreme Court of Nova Scotia and the Nova Scotia Court of Appeal ruled that the decision was outside the jurisdiction of the Nova Scotia Barristers’ Society, as determined by the Legal Professions Act of that province. In BC, the court sided with TWU; an appeal was filed by the Law Society of British Columbia and heard from June 1st to 3rd, 2016. A decision hasn’t yet been released.
So, essentially, what is the legal argument from both sides, that being made by the law societies of Ontario and Nova Scotia and that being made by TWU?
What may be confusing for observers to this unfolding saga is that the issues in each jurisdiction are slightly different. In Ontario, as the Ontario Court of Appeal succinctly put it, the argument was “a collision between the broad interpretation of two rights or freedoms”. Each court was asked to determine whether the decision made by each governing body was reasonable having regard to the competing values at stake. On one hand, the decision to deny accreditation infringes upon TWU’s freedom of religion – which includes the right to operate a university for individuals who share common religious values. On the other, there is the duty of the legal profession to ensure that access to its ranks is founded on equality and merit and not discriminatory grounds.
In BC, the decision was heavily based on principles of administrative law, which is a bit of a technical area governing the principles to be applied by a court when reviewing a decision made by a body such as the Law Society of British Columbia. In BC, the Benchers of the Law Society chose to adopt a non-binding vote of the members of the Law Society, which the court found to be improperly forfeiting or “fettering” its discretion, leading to a decision that could not be upheld.
In Nova Scotia, the decisions had much more to do with the legislation governing the legal profession in that province. TWU challenged the decision on the basis that the Nova Scotia Barristers’ Society didn’t have the legislative authority to restrict the ability to practice in Nova Scotia in the manner that it did. Thus, again, the issue is a bit more technical and specific to Nova Scotia, in contrast to the broader clash of values at stake in Ontario.
So, we saw the decisions split, with the appeals court in Ontario siding with the Law Society of Upper Canada and the court in Nova Scotia siding with TWU. Now, of course, neither of these cases are likely to stall where they are, with both cases likely shifting to higher courts. What is the main difference in interpretation that has led to these different decisions?
As I noted, the legislation governing the Nova Scotia Barristers’ Society is a bit narrower than the parallel legislation in BC and Ontario. Thus, the challenge was brought not on the basis of competing Charter values, but a question of pure jurisdiction. After sustaining two losses (not to mention having to pay a substantial amount of TWU’s legal costs as a result), it is definitely unclear whether the Barristers’ Society will choose to mount an appeal to the Supreme Court of Canada.
By contrast, the weighing of values in the BC and Ontario decisions are much more ripe fodder for review by the country’s top court as they raise an interesting collision of Charter values and contentious administrative law questions. We shouldn’t be surprised to see one or both appeals ending up there.
To those who talk about the right to freedom of conscience and freedom of religion to support discrimination against LGBTQ people, which is what I believe we see happening here, can you explain why that argument doesn’t work?
In my view, the religious freedom argument would only hold merit if these decisions somehow precluded TWU’s law school from coming into existence. In reality, a denial of accreditation doesn’t prohibit the establishment of the law school – it deals solely with the admission of graduates to practice in a given jurisdiction. Thus, TWU’s argument really boils down to the notion that religious freedom encompasses both the right to found a law school that excludes LGBTQ individuals and the right to have its law degrees recognized by every jurisdiction in Canada. Even if religious freedom could be read that broadly, it certainly shouldn’t outweigh the right of LGBTQ people to access the legal profession.
We, know that the religious right’s power and influence within the public sphere has gradually been eroding over a period of years, with the country becoming less white and less religious. Should we expect to see more and more cases like this? Or do you think this is one of the last hoorahs?
I am no expert in the evolving political dynamics of the country as a whole, but I think there will always be new battles for equality advocates. For liberal jurists, a lot of great victories have been won before the courts through the years – Vriend, Big M Drug Mart, Morgentaler, Bedford, Carter, to name a few – but the law remains the last recourse for a lot of marginalized groups facing systemic discrimination. The fact that cases like these continue to appear from generation to generation is a reminder of the importance of the courts in protecting human dignity.
Last but not least, the individual listed on the suit along with TWU now attends the U of A Law School. If I found his cell number and trolled him with an unending barrage of dick pics, am I in any way criminally liable for that behaviour?
Let’s just say that I wouldn’t recommend it!
Ashvin Singh is a graduate of the University of Toronto Faculty of Law and an Associate at Dentons Canada LLP. While he specializes in the area of tax litigation, he maintains an avid interest in human rights, criminal law and Charter jurisprudence.
The above comments represent the views of the author alone and are intended to constitute general information and not legal advice.