On the Case: Issue 19

Respect for the religious freedom of a Christian law school in British Columbia, Canada

This is the third edition of On The Case to consider a Canadian decision in relation to the accreditation of the law school of the evangelical Christian university, Trinity Western University (TWU) and the recognition of the qualifications of its potential students. It is unlikely to be the last edition on this topic as the issues are likely to come before the Supreme Court of Canada before too long. This case raises important questions about the ability of religious groups to provide tertiary education and other services in a manner consistent with their faith. Although the case deals with quite specific Canadian law, its approach to pluralism and to respect for human rights – even when they may be inconsistent with each other – and to how different groups with different views on issues of morality can be accommodated in a democratic society give it an international importance. It is a decision which warrants particular attention in Australia given the significant contribution made by religious organisations in areas as diverse as preparation and celebration of marriages and the provision of services such as education, medicine, aged care, palliative care and emergency housing.

In On The Case Issue 16 "Where the Offended Take Away Religious Freedom" The University of Notre Dame Australia, School of Law, Sydney's Adjunct Associate Professor Barry W Bussey, Director of Legal Affairs of Canadian Council of Christian Charities, discussed the Court of Appeal for Ontario's decision to uphold the Law Society of Upper Canada's refusal to accredit TWU's law school1. In On The Case Issue 17 "Religious Freedom and the return of Common Sense in Nova Scotia", Adjunct Associate Professor Bussey considered the decision of the Nova Scotia Court of Appeal in favour of TWU and overturned the decision of the Nova Scotia Barristers' Society to restrict the ability of TWU graduates to article and practice law in Nova Scotia2.

In this edition of On The Case Adjunct Associate Professor Bussey considers the British Columbia Court of Appeal (BCCA) decision in favour of TWU3. The Canadian Council of Christian Charities, of which Adjunct Associate Professor Bussey is Director, Legal Affairs was one of the interveners in the case.

In Brief

The BCCA unanimously held (5-0) that the Law Society of British Columbia's (LSBC) decision not to approve TWU's School of Law (the School) was unreasonable. The LSBC refused to accredit the School because students of TWU are required to sign a Community Covenant Agreement (CCA) as part of their admissions process. The CCA covers a range of expectations of the moral and other behaviours of TWU students. Relevantly for the purposes of the issues which have been raised against TWU in the cases so far, the CCA requires students to agree that, whilst studying at TWU, they would only engage in sexual activity within the traditional marriage relationship of one man and one woman. Whilst the CCA applied to all students and so the terms of the CCA relating to sexual behaviour would impact on potential students who wished to engage in any form of sexual activity outside a traditional marital relationship (including, for example, adulterous, pre-marital or multi-party sexual activities) whilst studying at TWU, the complaints considered in all of the cases heard to date have asserted that TWU's admissions policy discriminated against lesbian, gay, transgendered and queer (LGBTQ) persons.

Background

In June 2012 TWU applied to the Federation of Law Societies of Canada (FLSC) for accreditation for the proposed School. There was opposition to the proposal on the basis that, it was asserted that, the CCA discriminated against LGBTQ student applicants4. Also, it was argued that an FLSC accreditation would be an endorsement of the TWU's practices which were asserted to be discriminatory. Further, it was argued that the law had changed since the 2001 Supreme Court of Canada decision in favour of TWU against the British Columbia College of Teachers who refused to accredit TWU's education degree because of the same admissions policy. The FLSC set up a special committee to study the allegations and decided that there was no public interest reason to deny accreditation to the School.

Opponents to TWU's accreditation then argued that each of the individual law societies across Canada should conduct their own investigations of TWU and not accredit the proposed law school because of TWU's allegedly discriminatory practices5.

The Facts

On February 28, 2014, the LSBC Benchers debated whether to let the FLSC's approval of TWU stand or deny the TWU accreditation6. Opportunity was given for public input. On April 11, 2014 the LSBC Benchers voted on a resolution to declare the School to be "not an approved faculty of law" despite the FLSC's decision. Seven Benchers voted for the motion and twenty voted against – therefore the FLSC's approval remained and TWU was accredited.

A Special General Meeting of the members of the LSBC was then called and on June 10, 2014 (by 3,210 members to 968) this meeting called on the Benchers to declare TWU not an approved faculty of law. As a result, the Benchers revisited the issue and on September 26, 2014, the Benchers decided that a referendum of the full membership would be the way out of the impasse. The referendum results, they declared, would be binding. They also voted that the results of the referendum, whatever the outcome, met their statutory duties. On October 30, 2014 the results were 5,951 against TWU and 2,088 for TWU. The next day on October 31, 2014 the Benchers voted that TWU was not an approved law school. As a result TWU applied to the BCSC for judicial review.

On December 11, 2014 the Minister of Advanced Education decided that in order "to protect the interests of prospective students…." he would withdraw the province's consent to the School, until the litigation was settled. On December 10, 2015, Chief Justice Hinkson declared that the LSBC had inappropriately fettered its discretion because the October referendum did not attempt to resolve the collision of the competing interests which were protected by Canada's Charter of Rights and Freedoms (the Charter). The remedy was to restore the results of the April 11, 2014 decision which had accredited the School. The LSBC appealed to the BCCA and it is this appeal which is the subject of this edition of On The Case.

The Decision

The BCCA concluded that the TWU community had a right to hold and act on its beliefs, absent evidence of actual harm and that the decision of the BCLS in not approving TWU was a denial of religious freedom. The Court found that the impact of the BCLS' decision on religious freedom was severe whereas if the School was permitted to operate the impact on LGBTQ persons would be minimal. As a result the BCCA found that the BCLS' decision to declare the School not to be an approved law faculty was unreasonable. There was only one reasonable answer in the Court's view and that was this:

[193] A society that does not admit of and accommodate differences cannot be a free and democratic society — one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal. This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.

The Analysis

The BCCA answered the four issues:

  1. Did the BCLS have statutory authority to refuse to approve the School on the basis of an admissions policy?

    Yes. The BCCA found that the BCLS did have the authority to deny approval to a law faculty based on factors beyond the academic education being offered to students.

  2. Did the BCLS Benchers unlawfully sub-delegate or fetter their decision-making authority?

    Yes. The BCCA decided that the Benchers were wrong in passing a resolution that they would be bound by a referendum of members regardless of the results and stating that either result was consistent with their duties. Administrative bodies, like the BCLS, have an obligation to properly balance the potential Charter infringements of their decisions against their statutory requirements. When administrative bodies did this properly then the courts would defer to their wisdom.

    According to the BBCA, case law requires decisions of administrative bodies "to fall within the bounds of reasonableness." If such a body fails to appreciate the significance of the Charter values then its decision will not be reasonable. In the BCCA's view, administrative decision makers have to "balance the severity of the interference of the Charter protection with the statutory objectives."

    In making the October 31, 2014 decision that the BCLS would be bound by the referendum the Benchers did not take into account how the Charter values could in this case best be protected in light of its obligations under the Legal Profession Act7.

  3. Was TWU denied procedural fairness?

    No. The BCCA found that TWU had not been denied procedural fairness as there was ample debate on both sides of the issue and TWU knew what legal issues it had to address.

  4. Does the BCLS' decision reasonably balance the statutory objectives of the Legal Profession Act against the religious freedom rights of TWU?

    No. The BCCA observed that two rights, religious freedom and equality rights, were at issue. No right is absolute. Each has to be measured in relation to the other rights and the context in which the conflict arises. The BCLS was required to balance the competing rights and not limit a right unreasonably in light of their statutory objectives. The question the BCCA then asked itself was whether or not the BCLS' decision not to approve the School interfered with the freedom of religion, of at least the School and its students, no more than was necessary given the statutory objectives of the BCLS?

    The BCCA accepted that in their April 11, 2014 meeting the Benchers did consider the Charter issues and sought to balance the competing interests. However, this was not found to be the case at the Special General Meeting of June 2014 as no such balancing occurred there. Instead, at that Meeting what motivated the members was the view that the School was "'premised on principles of discrimination and intolerance' [and that it] would not promote and improve the standard of practice of lawyers." There was no concern for the competing Charter rights of TWU.

    The Benchers meeting on September 26, 2014 was to simply adopt the vote of the meeting of the members in June. There was no balancing. As a result the BCCA did not give deference to the BCLS on this matter.

    Unlike the Ontario Court of Appeal8 the BCCA found that the principles applied by Supreme Court of Canada in its 2001 decision dealing with TWU9 were applicable though not dispositive. Those principles were that:

    • The starting premise cannot be that one right trumps another. In other words equality does not trump religious freedom;
    • Charter rights are to be balanced against the statutory objectives of the BCLS
    • It is not enough to just consider the competing rights and choose one over the other. The BCLS was required to consider the nature and degree of the detrimental impact of the statutory decision on the Charter rights. It failed to do so.

Impact on Religious Freedom

The BCCA found that "the detrimental impact of the Law Society's decision on TWU's right to religious freedom is severe." The Court recognised that the BCLS approach would result in the non-recognition of law graduates from the School and that this would significantly impact on TWU's religious freedom rights as an institution as it could not open the School. If the School did not open no law students could study at TWU.

Impact on Sexual Orientation Equality Rights

Inequality of access to law school

The BCCA found that, in principle, the TWU CCA did not discriminate against LGBTQ students. If LGBTQ students wished to attend and to engage in conduct contrary to the CCA, whilst they were completing their studies at the School, they would either have to lie to apply and sacrifice deeply held aspects of their lives or face disciplinary action including expulsion. However, the BCCA held that that impact must be considered in context and concretely. There was no evidence that the existence of the School would impede access to law school and the legal profession for LGBTQ students. If there was no TWU School no law students, LGBTQ or otherwise, would be able to study law at the School.

BCLE Endorsement of the Covenant

The Court rejected the argument that the BCLS would be deemed to have endorsed TWU's views if it approved the School. It noted that:

[184] …If regulatory approval is to be denied based on the state's fear of being seen to endorse the beliefs of the institution or individual seeking a license, permit or accreditation, no religious faculty of any kind could be approved. Licensing of religious care facilities and hospitals would also fall into question.

[185] State neutrality is essential in a secular, pluralistic society. Canadian society is made up of diverse communities with disparate beliefs that cannot and need not be reconciled. While the state must adopt laws on some matters of social policy with which religious and other communities and individuals may disagree (such as enacting legislation recognizing same-sex marriage), it does so in the context of making room for diverse communities to hold and act on their beliefs. This approach is evident in the Civil Marriage Act, S.C. 2005, c. 33 itself, which expressly recognizes that "it is not against the public interest to hold and publicly express diverse views on marriage".

Implications of this Case

Religious freedom is a matter of considerable attention throughout the world. In the contemporary Western world conflicts between the rights and demands of the State and the rights to religious freedom of individuals and religious organisations are not only the subject of regular Court cases10 but also the subject of popular entertainment11.

The BCCA decision is a major development, not only for TWU in its battle for accreditation of the School, but also in the recognition of religious freedom – for individuals and for mission focussed organisations - more generally. As noted above, two other Canadian provincial courts of appeal have ruled on disputes in relation to the School. In Nova Scotia, the Court of Appeal ruled against the Nova Scotia Barristers' Society on administrative law grounds12. In Ontario, the Court of Appeal ruled in favour of The Law Society of Upper Canada (LSUC) on the basis that the LSUC only had to consider the religious freedom rights of TWU and that whatever decision it made would be reasonable. The Ontario Court also agreed that the TWU CCA was evidence of that reasonable decision13. However, the BCCA rejected the Ontario decision. The BCCA noted that a decision-maker must deal with the infringement of a Charter right not on the basis of feelings. The Court observed that:

[188]….While there is no doubt that the Covenant's refusal to accept LGBTQ expressions of sexuality is deeply offensive and hurtful to the LGBTQ community, and we do not in any way wish to minimize that effect, there is no Charter or other legal right to be free from views that offend and contradict an individual's strongly held beliefs, absent the kind of "hate speech" described in Whatcott [Saskatchewan (Human Rights Commission) v Whatcott(2013) SCC 11] that could incite harm against others (see paras 82, 89-90 and 111). Disagreement and discomfort with the views of others is unavoidable in a free and democratic society.

The BCCA decision means that there have now been 18 judges (6 in British Columbia; 6 in Ontario and 6 in Nova Scotia) who have heard cases in relation to the School. Twelve of those judges have ruled in TWU's favour. The six who have found against TWU were all in Ontario. This is significant because the Ontario Courts have adopted the interpretation of the Charter that was publicized by law deans in a letter to the FLSC Law dean Bill Flanagan's letter stated that:

Discrimination on the basis of sexual orientation is unlawful in Canada and fundamentally at odds with the core values of all Canadian law schools14.

This letter omitted any acknowledgement of the necessary religious exemptions of generally applicable law. This type of approach is criticised by William Galston as resulted in what he calls "civic totalism."15 The approach exemplified by the letter cited above involves discrimination against a religious minority justified on the basis of a need to avoid discrimination of another kind. By taking this approach the law deans were willing to broker no other view of discrimination but their own. Five members of the British Columbia judiciary have rejected the elite view of constitutional law. That is sobering. Up until now, the deans and their faculty have controlled the narrative on TWU. Not anymore. The BCCA decision can be interpreted to mean that the law deans' view has been reviewed and found wanting.

Dr Iain T. Benson, now Professor of Law at The University of Notre Dame Australia, School of law, Sydney, was prescient in an article16 published in the British Columbia Advocate three years ago as he articulated the issues at play when he chided the law deans stating that:

[I]t is wrong in principle to seek to impose one's views on others under the guise of 'liberalism' or 'equality', both of which should admit of different approaches, depending upon the context. [Otherwise] without context-sensitive exceptions to general rules of equality or discrimination, religious differences and associational liberty would no longer exist.

The BCCA's view parallels Professor Benson's approach. The 5-0 holding of British Columbia's highest court in an articulate and substantive ruling on the reasonableness of protecting religious freedom, while at the same time, ensuring that sexual equality rights are protected and only minimally impaired, stands as a game changer in this long TWU saga. Assuming the decision is appealed the Supreme Court of Canada will now have to decide not only between two distinct treatments of TWU's right to accreditation but two distinct interpretations of constitutional law. Given the intellectual depth and sound reasoning of this decision it will no doubt be given careful consideration in Canada's highest court.

1Trinity Western University v The Law Society of Upper Canada (2016) ONCA 518 (accessible at www.ontariocourts.ca/decision/2016/2016ONCA0518.htm). See Barry Bussey, On the Case: Issue 16 Where the Offended Take Away Religious Freedom” The University of Notre Dame Australia (accessible at www.nd.edu.au/sydney/schools/law/on-the-case/on-the-case-issue-16)
2The Nova Scotia Barristers’ Society v Trinity Western University and Brayden Volkenant (2016) CA 438894 (accessible at www.courts.ns.ca/Decisions_Of_Courts/documents/2016nsca59_000.pdf). ). See Barry Bussey, On the Case: Issue 17 “Religious Freedom and the return of Common Sense in Nova Scotia ”The University of Notre Dame Australia (accessible at www.nd.edu.au/sydney/schools/law/on-the-case/on-the-case-issue-17) 
3Trinity Western University v. The Law Society of British Columbia, (2016) BCCA 423 (accessible at www.twu.ca/sites/default/files/2016_bcca_423_trinity_western_university_v._the_law_society_of_british_c.pdf )
4 See www.theglobeandmail.com/opinion/law-societies-must-show-more-courage-on-trinity-western-application/article16023053/
5 See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2202408
6 For a complete listing of all the materials of the BCLS see www.lawsociety.bc.ca/page.cfm?cid=3912
7Legal Profession Act 1998, SBC (the Legal Profession Act) accessible at www.lawsociety.bc.ca/page.cfm?cid=694&t=Legal-Profession-Act-Contents
8 See n1 above
9Trinity Western University v British Columbia College of Teachers [2001] 1 S.C.R. 772, 2001 SCC 31
10 For some examples see the cases discussed in On The Case Issues 3, 7 and 9 accessible at www.nd.edu.au/sydney/schools/law/on-the-case
11 See Brett McCracken “Hacksaw Ridge: The Bloody, True Story of Faith in Action”, Christianity Today 3 November, 2016 accessible at www.christianitytoday.com/ct/2016/november-web-only/hacksaw-ridge.html
12 See n2 above
13 See n1 above
14 Bill Flanagan, President of the Canadian Council of Law Deans, to the Federation of Canadian Law Societies, November 20, 2012
15 William Galston, “Religion and the Limits of Liberal Democracy” in D. Farrow (ed), Recognizing Religion in a Secular Society(Montreal: McGill-Queens, 2004) 46-47.
16 Iain T. Benson, “Law Deans, Legal Coercion and the Freedoms of Association and Religion in Canada”, 71 The Advocate (2013) 5, 671-675.