SCC affirms 7-2 Ontario and B.C. regulators’ denial of accreditation to TWU’s proposed law school

Law360 Canada (June 15, 2018, 10:11 AM EDT) -- In a four-opinion ruling, the Supreme Court of Canada has ruled 7-2 that the refusal of the law societies of Ontario and B.C. to accredit Trinity Western University’s (TWU) proposed law school was reasonable because the regulators proportionately balanced the impact on the religious freedom rights of TWU’s community with the regulators’ mandate to protect the public — including promoting equal access to the legal profession, diversity and lawyer competence, as well as upholding a positive public perception of the legal profession.

On June 15, six years after the evangelical Christian university first proposed a law school in June 2012, seven judges of the Supreme Court upheld the law societies’ denial of accreditation based on the admissions barrier TWU has erected against LGBTQ (and some other) would-be students via a compulsory faith-based code of conduct (“community covenant”) that reserves sexual intimacy to marriage between one man and one woman — with transgressors facing possible suspension or expulsion from the university.

The Supreme Court noted that limits on religious freedom “are often an unavoidable reality of a decision-maker’s pursuit of its statutory mandate in a multi-cultural and democratic society” and that it “can be limited where the individual’s beliefs or practices harm or interfere with the rights of others.”

In dismissing TWU’s appeal in the Ontario case, and allowing the Law Society of British Columbia’s appeal in that province, the lead five-judge rulings in both appeals — co-written by Justices Rosalie Abella, Michael Moldaver, Andromache Karakatsanis, Chief Justice Richard Wagner and Justice Clément Gascon — held that the law societies did not limit religious freedom to a significant extent as they only interfered with TWU’s ability to operate a law school governed by the mandatory covenant.

“This limitation is of minor significance because a mandatory covenant is not absolutely required to study law in a Christian environment in which people follow certain religious rules of conduct, and attending a Christian law school is preferred, not necessary, for prospective TWU law students,” the majority observed in its Ontario judgment.

On the other side of the scale is the extent to which the regulators’ decision furthered their statutory objectives, the majority said. “In our view, the decision significantly advanced the statutory objectives by ensuring equal access to and diversity in the legal profession and preventing the risk of significant harm to LGBTQ people. The reality is that most LGBTQ individuals will be deterred from attending TWU’s law school, and those who do attend will be at risk of significant harm.”

In the B.C. case, the majority reasoned “the refusal to approve the proposed law school means that members of the TWU religious community are not free to impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm. The LSBC chose an interpretation of the public interest in the administration of justice which mandates access to law schools based on merit and diversity, not exclusionary religious practices. The refusal to approve TWU’s proposed law school prevents concrete, not abstract, harms to LGBTQ people and to the public in general. The LSBC’s decision ensures that equal access to the legal profession is not undermined and prevents the risk of significant harm to LGBTQ people who feel they have no choice but to attend TWU’s proposed law school. It also maintains public confidence in the legal profession, which could be undermined by the LSBC’s decision to approve a law school that forces LGBTQ people to deny who they are for three years to receive a legal education.”

Minutes after the ruling Janet Epp Buckingham, a TWU professor and lawyer who is one of the prime movers behind the university’s bid for a law school, said it remains to be seen whether the Supreme Court’s decision means the end of her university’s law school dream.

“At the moment I can’t say,” she said. “We will not be starting a law school in the near future. And we will have to consider our options as to how we’re going to go forward with this.”

She acknowledged that includes considering whether to make signing the community covenant optional for law students, rather than mandatory. “That’s certainly something that will be considered and I’m sure our board of governors will consider that as an option, but I can’t say at this point what the decision is going to be,” she told The Lawyer’s Daily.

Epp Buckingham explained TWU can’t start a law school until it gets approval from the Minister of Advanced Education in B.C. “who will not grant that approval unless we have approval from the B.C. Law Society. And the court today ruled that the B.C. Law Society can deny us our ability to have our law school.”

Asked whether TWU now fears legal challenges to its other professional programs, such as its education and nursing faculties, because of the compulsory nature of the community covenant, she told reporters gathered in the Supreme Court’s Great Hall “well obviously we are concerned about the implications of the case for a number of different things. But it’s a long and complicated judgment so we’ll have to read through it carefully and determine from that what exactly the court is saying. At the moment, what we understand is that they have said that law societies can deny our graduates the ability to be called to the bar in those provinces, but beyond that we’ll have to examine the judgment more carefully.”

Epp Buckingham emphasized “our other professional programs have been operating quite successfully for many years and so at the moment we’re not anticipating any challenges to those. The graduates from those programs are well-respected in the community so at the moment we are going to continue as we are.”

Epp Buckingham said TWU believes the cases were determined in “a very fair” legal process. “The court definitely had all of the arguments before it, both positive and negative,” she said. “We knew that it was going to be a divided decision — that was clear from the hearing that the judges were very divided. We were hopeful, of course, that the judges would decide in favour of diversity and religious freedom, but that’s not the outcome today.”

She explained, “certainly the balance between religious freedom and equality rights for LGBT persons has been a central focus of this case. Lawyers will be writing about this for years to come. But at the moment, it does look like religious freedom can be restricted by equality rights.”

Start Proud (formerly known as Out on Bay Street — one of almost 30 interveners in the case) called the decision “a huge step forward for the legal profession, and Canada as a whole, by making a strong statement about the importance of diversity, equality and accessibility in the legal profession.”

“We are happy to see an end to what has been a five-year struggle to guarantee equality rights within the legal profession,” the group said in a prepared statement. “As we argued before the Supreme Court of Canada, a barrier at the stage of entering law school represents a barrier to advancement in the legal profession and the opportunities that it presents. We are pleased that the court affirmed that LGBTQ+ students and young professionals do not have to choose between a legal education and who they are as individuals. That is a choice we believe no one should have to make.”

Toronto lawyer Paul Schabas, the treasurer of the Law Society of Ontario, welcomed the Supreme Court’s confirmation of the regulator’s jurisdiction over admission to the legal profession, including admission to the prerequisite legal education. “We are particularly pleased that the court recognized that our statutory mandate to uphold the public interest includes promoting a diverse bar and ensuring that there are no inequitable barriers to those seeking access to the legal profession,” Schabas said in a prepared statement.

He highlighted the Supreme Court’s acknowledgment that the public interest of promoting a diverse bar — one reflective of a diverse population and responsive to its needs — also furthers access to justice.

In a statement, Law Society of B.C. president Miriam Kresivo said “at the heart of the Supreme Court’s decision is a recognition of the responsibility of the law society to uphold the rights of all persons and to protect the public interest. The court recognized that the law society has an overarching interest in protecting equality and human rights, as well as to removing inequitable barriers to the legal profession, in carrying out our duties and ensuing public confidence.”

B.C. lawyer Kerry Simmons, president of the intervener Canadian Bar Association, said the court, in essence, says that admission to law school “should be based on competence, and not on what they call ‘personal characteristics’ unrelated to merit.”

“The court agreed with CBA’s arguments that deference is owed to law society decisions and that it was reasonable for the societies to refuse to recognize a law school at TWU on the basis that its mandatory covenant caused harm to a community and limited access to legal education and the legal profession,” she said in a prepared statement. “The decision wasn’t just an exercise in balancing Charter rights, but also in balancing those rights against the mandates of law societies in the protection of the public interest.”

West Coast LEAF, which intervened in support of the regulators, issued a statement describing the decision as “a significant victory for equality. Private institutions cannot engage in discriminatory admissions practices if they are looking for the state’s stamp of approval. … Equality in education is not just about how many law school seats might be made available. We couldn’t agree more with the majority that substantive equality means more than just having options, it means preventing the violation of human dignity.”

Derek Ross, counsel for the Christian Legal Fellowship, which intervened in support of TWU, said “we are encouraged by the eloquent dissent written by Justices [Suzanne] Côté and [Russell] Brown, which affirms that a free and democratic society must ‘protect rights-holders from majoritarian values, not to force conformance to those values’ and that ‘the public interest in fostering a liberal, pluralist society is served by accommodating religious freedom.’ ”

Ross added in his prepared statement that “true diversity makes room for religious communities like TWU. True diversity does not try to obliterate disagreement or force minorities to conform to state-approved beliefs.”

The majority noted that the legal regulators’ denial was based on the fact that TWU insisted that everyone adhere to the covenant, and declined to make signing and adhering to the community covenant optional for non-believers. “The decision therefore only prevents TWU’s community members from attending an approved law school at TWU that is governed by a mandatory covenant,” the majority pointed out.

In a separate opinion concurring in the result of the cases, former Chief Justice Beverley McLachlin agreed with the majority that the regulators’ decisions were proportionate and reasonable, but unlike her colleagues she considered that the limitation on the TWU community’s religious, expressive and associational rights is serious. She also emphasized that approving TWU’s proposed law school would condone discrimination against LGBTQ people based on sexual orientation, and that the law societies’ refusal to do so accorded with their legal obligations to act in the public interest.

In his concurrence, Justice Malcolm Rowe stressed that freedom of religion does not protect the right to impose those beliefs or practices on others, and thus, he held, TWU’s claim falls outside the scope of religious freedom protected by the Charter.

In their joint dissent, Justices Suzanne Côté and Russell Brown noted that the Ontario law society’s bylaws limit what the regulator can do in deciding whether to approve a law school. It can only decide whether graduates are fit to practise law, i.e. are competent and ethical (as argued by TWU). Since there was no evidence that TWU’s graduates would not be fit, the regulator should have approved the law school, they argued. Thus the decision to deny accreditation to TWU was taken for an improper purpose and is therefore invalid.

The minority also held that under the LSBC’s enabling statute, the only proper purpose of a law faculty approval decision is to ensure that individual graduates are fit to become members of the legal profession because they meet minimum standards of competence and ethical conduct. “As the fitness of future graduates of TWU’s proposed law school was not in dispute, this statutory objective cannot justify any limitations on the TWU community” s. 2(a) Charter-protected religious freedom rights, they ruled.

“Approving TWU’s proposed law school was the only decision reflecting a proportionate balancing between Charter rights and the LSBC’s statutory objectives,” Justices Côté and Brown wrote.

“Even if the LSBC’s statutory mandate had permitted the consideration of broader public interest concerns, the LSBC’s decision would not be justified, since withholding approval substantially interferes with the TWU community’s freedom of religion and approving TWU’s proposed law school was not against the public interest,” they said. “Accommodating religious diversity is in the public interest, broadly understood, and approving the proposed law school does not condone discrimination against LGBTQ persons. The purpose of TWU’s admissions policy is not to exclude LGBTQ persons, or anybody else, but to establish a code of conduct which ensures the vitality of its religious community. No one group is singled out, and many others (notably unmarried heterosexual persons) would be bound by it. The unequal access resulting from the Covenant is a function of accommodating religious freedom, which itself advances the public interest by promoting diversity in a liberal, pluralist society. The state and state actors — not private institutions like TWU — are constitutionally bound to accommodate difference in order to foster pluralism in public life. Equating approval to condonation turns the protective shield of the Charter into a sword by effectively imposing Charter obligations on private actors.”

However, the majority judgment(s) saw the balancing exercise very differently. “Freedom of religion protects the rights of religious adherents to hold and express beliefs through both individual and communal practices,” Justices Abella, Moldaver, Karakatsanis, Wagner and Gascon observed. “Where a religious practice impacts others, however, this can be taken into account at the balancing stage. In this case, the effect of the mandatory Covenant is to restrict the conduct of others. The LSBC’s decision prevents the risk of significant harm to LGBTQ people who feel they have no choice but to attend TWU’s proposed law school. These individuals would have to deny who they are for three years to receive a legal education,” the majority reasoned.

“Being required by someone else’s religious beliefs to behave contrary to one’s sexual identity is degrading and disrespectful.”

Photo of Justice Rosalie Abella by Phillipe Landreville
Photo of Justice Russell Brown by Andrew Balfour Photography
Photo of Janet Epp Buckingham by Cristin Schmitz
Photo of Paul Schabas by Amanda Jerome