The majority of the Supreme Court of Canada has upheld the decisions of the Law Society of British Columbia and the Law Society of Upper Canada to not accredit a law school at Trinity Western University that requires its students and faculty to adhere to a religiously based code of conduct.
“In our view, the decision made by the LSBC ‘gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate’ (Loyola, at para. 39). Therefore, the decision amounted to a proportionate balancing and was reasonable,” wrote justices Abella, Moldaver, Karakatsanis, Wagner and Gascon in their joint reasons in Law Society of British Columbia v. Trinity Western University. In the companion decision of Trinity Western University v. Law Society of Upper Canada, the majority of the court confirmed that the LSUC decision not to accredit TWU was also reasonable.
In strongly worded dissent, however, Justices Côté and Brown found that both law societies should have approved the accreditation of TWU’s law school.
“The decision not to approve TWU’s proposed law faculty because of the restrictions contained in the Covenant — a code of conduct protected by provincial human rights legislation — is a profound interference with religious freedom, and is contrary to the state’s duty of religious neutrality,” the two judges wrote in joint dissenting reasons in LSBC v. TWU.
While Chief Justice McLachlin (as she then was) and Justice Rowe concurred with the majority in the result, they offered differing reasons for why the law societies were entitled to not accredit the TWU law school. Both McLachlin and Rowe offered varying frameworks for how to evaluate the Charter rights and the administrative principles at play. McLachlin found that the majority should not have relied on the language of deference and reasonableness in administrative law and she disagreed that denial of accreditation is of “minor significance” on the religious, expressive and associational rights of the TWU community. Instead, she found it was justified as a proportionate balancing of freedom of religion and avoidance of discrimination. Rowe, on the other hand, ruled that the LSBC’s decision did not result in a Charter infringement and should be reviewed under the usual principles of judicial review.
Reaction was swift from Trinity Western University, which issued a press release this morning stating that it was “disappointed by the Supreme Court’s decision today, which diminishes the value of pluralistic diversity in Canada. In a very long complex ruling, with four sets of reasons, eight of nine judges agree that TWU’s religious freedom is violated but the majority still uphold the law societies’ decision not to approve the law school.”
“We feel this is a lost opportunity for Canadians, many of whom do not have affordable access to justice,” Earl Phillips, executive director of TWU’s proposed law school, was quoted as saying in the release. “There are only three common law schools in Canada that offer a course in charity law. The TWU law school would have offered a specialty in charity law. Because Canada has the second largest charitable and non-profit sector in the world, this loss stands to impact Canadians coast to coast.”
Law Society of Ontario Treasurer Paul Schabas told Legal Feeds that the LSO is “very pleased that its position has been upheld and that the process it followed is also regarded as a fair process . . . The decision speaks very positively about the law society’s role in protecting the public interest and that it extends clearly to promoting diversity and how promoting diversity is in the public interest and actually promotes access to justice. So, to me, the decision is really an affirmation of a lot of the work that we’ve been doing over the past couple of years on equality, diversity and inclusion and a recognition that this is squarely within our mandate.”
Alan D’Silva at Stikeman Elliott LLP, who represented the Canadian Civil Liberties Association in the case, says, “We are pleased that the Supreme Court of Canada has upheld the decisions of the law societies because the decisions of the law societies are consistent with their obligation to promote equality and non-discriminatory conduct.”
D’Silva says the decision means that “the TWU community members cannot impose religious beliefs on fellow law students since they have an inequitable impact and cause significant harm on those students.”
In a press release, the Law Society of British Columbia's 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.”
Editor's note: Comments added at 12:55 p.m. from Alan D'Silva and Law Society of British Columbia.