Law Society of British Columbia v Trinity Western University 2018 SCC 32 (15 June 2018); and Trinity Western University v Law Society of Upper Canada 2018 SCC 33 (15 June 2018)
In two recent decisions, the Supreme Court of Canada held that the law societies of British Columbia and Ontario were entitled to deny accreditation to a law school which required its students, on religious grounds, to adhere to a covenant allowing sexual intimacy only between a married man and woman.
Both cases involved Trinity Western University (TWU), which sought to open a law school that required its students and faculty to adhere to a religiously-based mandatory code of conduct, the Community Covenant Agreement (Covenant). The Covenant prohibited “sexual intimacy that violated the sacredness of marriage between a man and a woman”, even when students were off-campus.
The relevant law societies in each state decided, by resolution of its “benchers” (i.e. the equivalent to its board of governors or directors), to deny accreditation to TWU’s proposed law school, because of the mandatory Covenant.
The majority, which consisted of Justices Abella, Moldaver, Karakatsanis, Wagner and Gascon, held that the decisions of each law society not to approve TWU’s law school represented a proportionate balance between freedom of religion as guaranteed by section 2(a) of the Canadian Charter of Human Rights and Freedoms (Charter), and the statutory objectives each law society sought to pursue. The decisions by each law society were therefore deemed by the Court to be reasonable.
Chief Justice McLachlin and Justice Rowe delivered separate minority judgments, with Justices Cote and Brown dissenting.
Law society entitled to consider public interest
The majority held that each law society’s enabling statute allowed it to consider TWU’s admission policies in determining whether to approve the accreditation of its law school. In determining the requirements for admission to the profession (including whether to approve a particular law school), each statute required the law society to consider the overarching purpose of protecting the public interest. The Court held that each law society has a discretion as to how to further the public interest, as they are self-regulating.
The law societies interpreted their duty to protect the public interest as precluding the approval of TWU’s law school accreditation. This decision was made on the basis that the mandatory Covenant “effectively impose[d] inequitable barriers on entry to the school, and ultimately … the profession”. The majority held that it was reasonable for the benchers of each law society to conclude that promoting equality would further the public interest. Furthermore, the majority also found that approving or facilitating inequitable barriers to the legal profession could undermine public confidence in the profession itself.
Decision to refuse approval achieved proportionate balance
The majority then considered the legal principles applicable in the review of administrative decisions that engage the Charter. Applying the cases of Doré v. Barreau du Québec, 2012 SCC 12, and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, the Court held that that the following questions must be determined:
does the decision limit Charter rights and values?; and
in assessing the impact of the relevant Charter protection, and given the nature of the decision and the statutory and factual contexts, does the decision reflect a proportionate balancing of the Charter protections at play and the relevant statutory mandate?
In considering section 2(a) of the Charter, the Court held that the right is limited or engaged when the claimant demonstrates:
a sincere belief in a practice or belief which that has a nexus with religion; and
that the decision interferes with the ability to act in accordance with that practice or belief in a more than trivial manner.
The majority held that it was clear that members of the TWU community sincerely believed that their spiritual development was enhanced by studying in an environment where members follow particular religious conduct rules. Accordingly, as the decisions limited their ability to enhance their spiritual development, their religious rights were limited by the decisions.
The majority subsequently applied the proportionality analysis, which required them to carefully consider:
whether there were other reasonable possibilities that would give effect to Charter protections more fully in light of the statutory objectives; and
how substantial the limitation on the Charter protection was, compared to the benefits to the furtherance of the statutory objectives.
Each law society was faced with only two options: to approve or reject TWU’s proposed law school. Approving the law school would not have advanced the relevant statutory objectives, and therefore was not a reasonable possibility.
In addition, the decision did not limit religious freedom to a significant extent, because the compulsory covenant was not required to study law in a Christian environment in which people follow certain religious conduct rules. Furthermore, studying law in an environment infused with the community’s religious beliefs was preferred, but not necessary, for spiritual growth.
Moreover, the decision not to approve TWU’s proposed law school significantly advanced the law societies’ statutory objectives by maintaining equal access to and diversity in the legal profession, and by preventing the risk of significant harm to LGBTQ people. Public confidence in the administration of justice could be undermined by a decision to approve a law school that forces some to deny a crucial part of their identity, even in private and personal spaces, in order to receive a law degree.
The decision was therefore considered reasonable.
The decisions of the Court recognise that law societies (and, by extension, other self-regulating bodies) have a responsibility to uphold the human rights of all persons and to protect the public interest. This includes the public interest in maintaining equal access to the industry or profession in question (in this case, the legal profession).
The decisions also provide guidance as to how courts may treat the process of balancing competing human rights. Whilst freedom of religion protects the rights of religious adherents to hold and express beliefs, whether a religious practice impacts others must also be taken into account. Most notably, the Court commented that “[b]eing required by someone else’s religious beliefs to behave contrary to one’s sexual identity is degrading and disrespectful”, and recognised that this has the potential to cause serious harm.
These decisions are particularly relevant to current Australian parliamentary debates around legislative exemptions for religious educational institutions which allow discrimination against LGBTQ students and staff, including discriminatory codes of conduct. A Senate Committee is conducting an inquiry into a bill which would prohibit religious educational institutions from discriminating against LGBTQ students and the Australian Government has committed to implementing controversial recommendations from the Religious Freedom Review. Unlike Canada, Australia does not have a Charter of Human Rights to guide judicial interpretation around balancing competing human rights, and Australian anti-discrimination laws continue to contain broad carve-outs for religious educational institutions.
Paula Mucha is a Solicitor at King & Wood Mallesons.