SCC backs law societies in denying accreditation to TWU

Par Justin Ling juin 15, 201815 juin 2018

SCC backs law societies in denying accreditation to TWU

Trinity Western University has lost its bid to the Supreme Court, and its graduates will not be accredited as lawyers, so long as the school forces its students to sign a mandatory religious covenant.

The 7-2 split decision from the court — with four different reasons — ruled that the law school’s exclusionary admissions policy unduly excluded LGBTQ students. In doing so, it found the decisions by both the law societies of British Columbia and Ontario to deny it accreditation to be reasonable.

Under the law school’s mandatory covenant, students are forbidden from engaging in sexual activity outside the bonds of heterosexual marriage.

The pair of decisions — dismissing the appeal in Ontario, and allowing the appeal in British Columbia — offers new guidance on where the religious freedom guaranteed under the Canadian Charter begins and ends. But the majority court couldn’t come to a consensus on how that should work.

Justices Rosalie Abella, Michael Moldaver, Andromache Karakatsanis, Richard Wagner, and Clement Gascon, for the majority, found that Trinity Western — and its students — did not have their freedom of religion limited “to a significant extent.” As such, the “significant harm” that would be done to LGBTQ students who end up attending, and the deterrence effect on those who do not, outweigh the school’s claim to religious freedom. They concluded that the two law societies appropriately balanced the two protections.

Trinity Western, in its application to the court, had contended that, because it occupies only a small number of the overall law school spaces in the country, denying those spaces to prospective LGBTQ students would be "insignificant in real terms.” (Although the school also argued that evangelical LGBTQ students could also study and “thrive” at the school.)

The Canadian Bar Association addressed the issue in its arguments before the court.

“A law society does not properly fulfill its mandate by allowing what has been called direct discrimination to persist while waiting for evidence of its effects,” the association wrote in its factum. “Discrimination is an evil in itself. When faced with discrimination, it is no answer to tell those burdened by it that they can get equivalent services elsewhere, much less to oblige them to prove that they cannot get equivalent services elsewhere. The harm is in the discriminatory act itself, and does not require proof of the unavailability of alternative services.”

The decision gets interesting in the split reasons.

In her last judgment before the court, Justice Beverley McLachlin agreed with her four colleagues that the balancing test was done appropriately. However, she found that

the “denial of accreditation precludes members of the TWU community from engaging in the practice of providing legal education in an environment that conforms to their religious beliefs, deprives them of the ability to express those beliefs in institutional form, and prevents them from associating in the manner they believe their faith requires.” Those infringements, she goes on, are “not of minor significance.”

McLachlin, therefore, puts even more weight behind the idea that the harm done to LGBTQ students was significant enough to justify it.

“In my view, the most compelling law society objective is the imperative of refusing to condone discrimination against LGBTQ people, pursuant to the LSBC’s statutory obligation to protect the public interest,” she writes.

Justice Malcolm Rowe veered in the other direction, concluding that Trinity Western simply had no real case that there was an impact on its religious freedom.

In his view, requiring adherence to the Covenant by all who attend TWI is not protected by the Charter. “This is because — by means of the mandatory Covenant — the claimants seek to require others outside their religious community to conform to their religious practices. I can find no decision by this Court to the effect that s.2 (a) protects such a right to impose adherence to religious practices on those who do not voluntarily adhere thereto.”

In their dissent, Justices Suzanne Côté and Russell Brown found that denying Trinity Western’s accreditation as a law school significantly impacted the freedom of religion of the university’s community — concluding that it was on the law societies to accommodate the religious institution’s differences.

“The unequal access resulting from the covenant is a function not of condonation of discrimination, but of accommodating religious freedom,” they wrote.

They also reject the idea that the two law societies, and the courts in balancing the Charter rights, should be concerned with the public perception of what would come from accrediting the school. “Where Charter rights are involved, a court of law ought not to be concerned with public perception — such rights existing to protect rights-holders from majoritarian values, not to force conformance to those values,” they write.

They conclude that the law societies were limited to analyzing the competence of the prospective lawyers, not the policies of a private institution.

The CBA argued against this view. As intervenor it asserted that it was the law society’s ”duty to uphold and protect the public interest in the administration of justice by, inter alia, preserving and protecting the rights and freedoms of all persons.” The Law Society of Ontario (formerly the Law Society of Upper Canada) also contended that its accreditation policies were relevant because its mandate requires it not to base admissions of lawyers “on irrelevant personal characteristics” — and that’s precisely what Trinity Western did

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