On June 15, 2018, the Supreme Court of Canada delivered its highly anticipated decisions in Trinity Western University, et al. v. Law Society of Upper Canada, and Law Society of British Columbia v. Trinity Western. By a 7-2 majority in both cases, the Court affirmed that the Ontario and B.C. law societies’ (the “Law Societies”) decisions not to accredit Trinity Western University’s proposed law school were reasonable and represented a proportionate balance between the Charter rights of equality and religious freedom. The SCC endorsed the Law Societies’ conclusions that they could not accredit a proposed law school that condones a mandatory covenant that directly discriminates against individuals and groups based on sexual orientation, gender, marital status and religion.

Background

This case dates back to January 2014, when Trinity Western University (TWU), a private evangelical Christian university, asked the LSUC to accredit its proposed law school. The crux of the case stems from TWU’s admissions policy, which requires that all students, faculty and staff sign and abide by a Community Covenant based on evangelical Christian notions of Biblical teaching and morality. The Covenant prohibits, among other things, sexual intimacy outside of “marriage between one man and one woman.” TWU would deny admission to any student who refused to sign the Covenant.

In April 2014, after considerable and thoughtful deliberations, the LSUC’s decided, by resolution of its Benchers, to deny accreditation to TWU’s proposed law school because of its mandatory Covenant. TWU and a graduate of TWU’s undergraduate program who would have chosen to attend TWU’s proposed law school, applied for judicial review, seeking an order declaring that the LSUC’s decision was unauthorized and otherwise invalid and approving TWU’s application for accreditation. Among other things, TWU argued that the LSUC violated the right to freedom of religion in section 2(a) of the Charter of Rights and Freedoms.

The Decision of the Ontario Divisional Court

The Ontario Divisional Court dismissed the application for judicial review – confirming the LSUC’s jurisdiction to act as it did and determining that LSUC’s decision was a reasonable one. The Divisional Court held that the Covenant operated in a discriminatory fashion by requiring individuals to adhere to a particular view and belief system in order to attend TWU. The Divisional Court found that the LSUC’s decision not to accredit TWU’s proposed law school infringed the appellants’ freedom of religion but that the decision was justifiable because the LSUC engaged in a proportionate balancing of the Charter rights and values in play (freedom of religion and equality) and reached a reasonable decision in not accrediting TWU. The Court reasoned that TWU was able to promote its beliefs without coercing others into forsaking their true beliefs in order to have an equal opportunity to a legal education.

The Decision of the Court of Appeal of Ontario

The Court of Appeal also dismissed the appeal, finding that the LSUC’s decision to deny accreditation reflected a reasonable balancing of the Charter rights engaged with the statutory objectives of the LSUC, such as ensuring equal access to legal education. In considering TWU’s request for a unique and significant public benefit (namely accreditation), the Court of Appeal concluded that the LSUC had to take into account the fact that the Covenant discriminates, and that it had to make its decision about accreditation in light of human rights, Charter rights and Charter values. The Court of Appeal endorsed the LSUC’s conclusion that the Covenant could not be countenanced as it is “deeply discriminatory to the LGBTQ community, and it hurts”.

The Supreme Court of Canada Ruling

TWU was granted leave to appeal to the SCC, and in a two-day hearing in December 2017, the SCC heard arguments from lawyers for TWU, the law societies of British Columbia and Ontario, as well as from a record number of intervenors, including the Canadian Civil Liberties Association, who intervened in support of the LSUC’s decision.

In a 7-2 ruling, the majority of the SCC upheld the LSUC’s decision to deny accreditation to TWU’s proposed law school. The SCC acknowledged that the LSUC is tasked with, among other things, regulating the legal profession in Ontario, ensuring standards of professionalism and competence among lawyers, and fulfilling its various functions according to its duty to protect the public interest. It was clear to the majority of the Court that the LSUC was entitled to conclude that “equal access to the legal profession, diversity within the bar, and preventing harm to the LGBTQ law students were all within the scope of its duty to uphold the public interest in the accreditation context.”

The majority of the SCC held that the LSUC’s decision to deny accreditation limited the religious freedom of TWU’s religious community; however, the decision was reasonable under the Dore/Loyola framework, as it reasonably balanced the severity of the interference with the benefits of the LSUC’s statutory objectives. While noting that the Charter right to freedom of religion was engaged in this case, the majority of the SCC held that “it is inimical to the integrity of the legal profession to limit access on the basis of personal characteristics. As a public actor, the LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions.”

“The LSUC did not limit religious freedom to a significant extent” the majority of the Court held, reasoning that the LSUC’s decision only interfered with TWU’s ability to operate a law school governed by the mandatory Covenant, which is of minor significance as the Covenant is not “absolutely required to study law in a Christian environment” and “attending a Christian law school is preferred, not necessary, for prospective TWU law students”. The majority of the SCC clearly recognized the extent to which the LSUC’s decision significantly advanced the LSUC’s statutory objectives of ensuring equal access to and diversity in the legal profession, and held that “the LSUC’s decision means that TWU’s community members cannot impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm.”

The majority concluded that the LSUC chose an interpretation of the public interest, which “mandates access to law schools based on merit and diversity, rather than exclusionary religious practices”, and that ultimately, the LSUC’s decision “prevents concrete, not abstract, harms to the LGBTQ people and to the public in general.”