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- at [193].

The latest decision in the long-running Trinity Western University law school saga, from the Court of Appeal for British Columbia, is an encouraging development for religious freedom in Canada. In Trinity Western University v. The Law Society of British Columbia,
2016 BCCA 423 (1 Nov 2016) the Court of Appeal held that the decision of the Law Society of British Columbia to refuse accreditation to practice law in the Province, to graduates of a new proposed TWU law school, was unlawful. That decision had been based on the “Community Covenant” required of all students at the confessionally evangelical TWU, to (among other things) “abstain from… sexual intimacy that violates the sacredness of marriage between a man and a woman”. The Court held that the Law Society had failed to give proper consideration to the impact on the religious freedom of TWU students and graduates in making its decision.

The history of this long-running dispute has been noted in a paper I wrote in 2013, and in updates on this blog here and here. TWU is an evangelical University which has been operating since 1969. In a previous case its ability to produce teachers who would be employed by the public sector was challenged on the basis of the Community Covenant, at that time because it was alleged that students who had undertaken this promise would later be inclined to be bigoted and discriminatory. In that earlier decision, Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, the Supreme Court of Canada held that those allegations about TWU teaching graduates were unfounded, and that an appropriate balancing of Charter religious freedom and “non-discrimination” rights was to allow students who chose to study at the religious TWU to do so. There was no convincing evidence that those graduates were more intolerant than others.

TWU’s more recently proposed law school was approved in 2012-2013 by the Federation of Law Societies of Canada for accreditation of its graduates to be admitted to practice, with the various committees involved giving detailed consideration to issues raised by the Covenant. Many Canadian Provincial Law Societies simply defer to the decision of the Federation on accreditation, or have accepted TWU’s students in specific decisions. But in Nova Scotia, Ontario and British Columbia the relevant Law Societies passed resolutions declining to accredit TWU graduates, on the basis of objection to the Covenant. The decision of the Nova Scotia Barrister’s Society was overturned by a trial judge, and this decision was upheld on appeal on administrative law grounds. In Ontario, however, the decision of the Law Society of Upper Canada refusing accreditation was upheld by a trial judge and then on appeal.

Here the British Columbia Court of Appeal holds that the Benchers of the  BC Law Society had behaved unlawfully in denying accreditation.

TWU’s approval by the Canadian Federation was at first effective to allow admission in BC, but this was subject to a motion of disapproval from the Benchers (the designated “committee of management”). After some debate the motion to not approve TWU as an “approved faculty of law” was defeated at meeting of the Benchers in April 2014 by 20-7. However, a number of members of the Society then petitioned the Benchers to hold a “special general meeting” of the Society, where in June 2014 a majority of the members voted to approve a motion “directing” the Benchers to declare that TWU was not approved.

In a meeting in September 2014 the Benchers (to whom this decision had been entrusted under the legislation) voted to put the matter to a “referendum” of members, to the result of which they would agree to be bound. This referendum in October 2014 having voted to declare TWU not approved, a subsequent meeting of the Benchers adopted a new motion by 25-1 agreeing with the result of the referendum.

The main challenge put forward by TWU was that the Benchers had abdicated the responsibility that they had as a body to make the decision, by agreeing to be bound by the referendum of members. This challenge succeeded- the Court holding that, in effect, by “fettering” their decision making powers by deferring to the referendum result, the Benchers had failed to carry out, as was their duty, a proper balancing of Charter rights:

[89] In the case before us, it was up to the Benchers to weigh the statutory objectives of the Legal Profession Act against Charter values, and to arrive at the decision that, in their view, best protected Charter values without sacrificing important statutory objectives. They could not fulfill their statutory duties without undertaking this balancing process… [91]  As the chambers judge found, the Benchers failed to fulfill their function when they chose not to come to any conclusion as to how statutory objectives should be weighed against Charter values. In reaching the decision by binding referendum, the Benchers fettered their discretion in a manner inconsistent with their statutory duties.

However, the Court found that it needed to go further than simply concluding that the decision had been made in the wrong way; it went on to consider what the appropriate balance of rights should have been. Clearly a refusal to accredit TWU graduates would have an impact on the religious freedom of the graduates, and the faculty, of TWU. (It was even possible that TWU as a corporate entity had religious freedom rights as well, but the Court held that it did not need to make a definite ruling on that point- see [107].)

There was then a conflict with non-discrimination rights enjoyed by same sex attracted persons, who would not be able to conscientiously adhere to the Covenant and hence would be prevented from enrolling at TWU. The Court of Appeal discussed at length previous decisions of the Supreme Court of Canada requiring any interference with religious freedom to be “proportionate” to the relevant conflicting aims and “no more than is necessary” to meet those aims- see [120], [133].

In concluding that the Benchers had not struck the right balance in this case, the Court referred to the previous decision in TWU v BCCT mentioned above, noting that while the cases were not the same (here the Law Society did not claim that TWU graduates would be intolerant), the principles at stake were similar. In considering the respective “detriments” suffered by each side in the debate, the detriment suffered by TWU was serious- not only could they not offer legal education which would lead to legal practice, but in fact in British Columbia the relevant Minister, having been told about the refusal to accredit graduates, had actually withdrawn approval for the law program being offered at all- see [168].

What detriments would be suffered by the LGBTQ community if TWU were allowed to run its law school with the Covenant in place? While there would be few such students who would be willing to study at TWU, in fact it was noted that an expansion of the places at law schools in Canada by the addition of those at TWU, would “free up” other positions at other law schools- see [174]. In other words, some conservative Christian students who may have studied at other schools, would now attend TWU, leaving more places at those other schools to be filled by others, including members of the LBBTQ community.

The argument that by recognising TWU students as suitable to be admitted, the Law Society would be “condoning” the values expressed in the Community Covenant, was rejected- see [184]. Regulatory approval of graduates did not amount to endorsement of all that was said and taught at an institution. While it may be accepted that the Convent was viewed by many as “offensive”, this was not a sufficient harm to over-ride the religious freedom rights of the TWU faculty and students.

[188] The balancing of conflicting Charter rights requires a statutory decision-maker to assess the degree of infringement of a decision on a Charter right. 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 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. (emphasis added)

It is interesting that the Court also noted that it was not right to say that TWU views about traditional marriage being the appropriate forum for expression of sexuality, were somehow contrary to the “public interest” in Canada. Despite Canada having accepted same sex marriage, there was still room for difference among its citizens on the topic:

[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”. (emphasis added)

In the end the Court concluded that the serious detriment to TWU’s religious freedom of the Law Society’s decision was not outweighed by the other interests at stake, and the decision that had been made was wrong.

[190] The TWU community has a right to hold and act on its beliefs, absent evidence of actual harm. To do so is an expression of its right to freedom of religion. The Law Society’s decision not to approve TWU’s faculty of law denies these evangelical Christians the ability to exercise fundamental religious and associative rights which would otherwise be assured to them under s. 2 of the Charter.

[191]  In light of the severe impact of non-approval on the religious freedom rights at stake and the minimal impact of approval on the access of LGBTQ persons to law school and the legal profession, and bearing in mind the Doré obligation to ensure that Charter rights are limited “no more than is necessary” (para. 7), we conclude that a decision to declare TWU not to be an approved law faculty would be unreasonable.

I can only agree. The decision may now go on appeal to the Supreme Court of Canada, along with one or two of the other decisions on this matter. Hopefully that Court will continue its support of Charter religious freedom rights, as seen in its previous decision in 2001.