Trinity Western University, an evangelical tertiary institution in British Columbia, has lost two cases it had brought protesting the decision of two Canadian Provincial Law Societies to not authorise graduates of their proposed Law School as able to practice in the Provinces. The reason for the denial of accreditation was that TWU requires students and staff to agree to a Community Covenant Agreement, which undertakes (among other things) that they will not engage while studying or working at TWU in “sexual intimacy that violates the sacredness of marriage between a man and a woman”. The Supreme Court of Canada, in two linked cases, has now held by a 7-2 majority that the Law Societies were justified in their refusal to accredit the TWU Law program, on the basis that any interference with religious freedom was minor, and that the Societies were entitled to take the view that the Covenant requirement imposed “harm” on LGBTQ law students. I disagree with both those conclusions, and believe that the dissenting judgment of Côté and Brown JJ is a far better analysis of the situation.
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 .
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.
Contrary to my normal practice on this blog, I would like to provide two short comments on breaking developments, rather than one long comment. This first one concerns an encouraging development in the story of the long fight of a Christian University in Canada to offer law degrees. The second, which will be in a separate post, notes an important recent decision on “religious vilification” in the Australian State of Victoria.
First: in Canada, Trinity Western University is a confessional Christian University in British Columbia, which has for some time been in a debate with Law Societies in Canada over whether its new Law program will be recognised for the purposes of admission to practice in the various Canadian Provinces.
The decision of the Ontario Court of Appeal in Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518 (29 June 2016) is an interesting illustration of the strength of the current orthodoxy in society on sexual behaviour, and how those who dissent are increasingly being cast in the role of “heretics” and unfit for civilised society. (While this blog is mostly about Australian issues, those raised by this case are likely to be replicated here and elsewhere in the West, so I think it is worthy of note.)
In a previous post I noted the ongoing controversy over whether Trinity Western University, in British Columbia, Canada, can train lawyers who will be able to practice in Canada. TWU as a Christian University requires its students to agree to comply with a Code of Conduct, part of which bans all sexual intimacy outside the traditional marriage between a man and woman. TWU’s Law program has actually been approved by the Canadian national accrediting body, the Federation of Canadian Law Societies. But as noted previously, a number of individual Provincial Law Societies have now indicated that, due to the Covenant being viewed as discrimination against persons on the basis of their sexual orientation, TWU graduates will not be admitted to practice law in those Provinces.
The first decision in what may be a number of judicial challenges to the refusal of Law Societies to accept TWU future graduates was handed down on 28 January 2015 in Nova Scotia. In Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25, Justice Campbell of the Nova Scotia Supreme Court ruled in favour of TWU. (See press summary here.) His Honour held that the NSBS had acted beyond its powers by changing its rules to refuse to accept TWU graduates whose law degrees had been approved by the Federal FCLS, especially as it was accepted that there was no evidence that TWU graduates would unlawfully discriminate against anybody on the basis of their sexuality. In addition, his Honour held that the NSBS in making its decision was under a duty under the Canadian Charter to take into account the religious freedom rights of TWU students and graduates, and had not done so appropriately. Just a minor point- the final ruling is summed up in para  of the decision; the version available on the web today I think accidentally omits the word “not” from the final sentence in that paragraph. But the rest of the decision makes it crystal clear that his Honour thinks that
The NSBS resolution and regulation infringe on the freedom of religion of TWU and its students in a way that cannot be justified. The rights, Charter values and regulatory objectives were not reasonably balanced within a margin of appreciation. (word added)
it will surprise no-one who has read my previous paper on the issues that I agree entirely with the Judge’s decision. If I can say so with due respect, the decision is remarkable for both its learning, its clarity and the breadth of the issues covered, while remaining clearly focussed on the relevant issues. I recommend anyone interested in the balancing of religious freedom with anti-discrimination rights to read it carefully.
This may sound like an odd question, but it is one that has been raised in Canada recently with the application of a Christian University there, Trinity Western, to offer a law degree. The University has a policy which has attracted the ire of some, which requires students to adhere to Biblical standards of sexual behaviour while pursuing their course. This would mean that sexual intercourse outside marriage was precluded, both for heterosexual and homosexual couples. Interestingly the ban on heterosexual sex does not seem to have caused the problem, but the ban on homosexual sex has been interpreted as meaning that homosexual persons would not be able to study law at TWU. Under the Canadian system for accrediting legal practitioners, each Province’s Law Society must approve a particular law degree for its graduates to be able to practice law in that Province, and while at the early stages TWU had received approval from many of the Provincial Law Societies, more recently a number have either refused or reversed an earlier decision to approve.
See here for a detailed comment on the issues as they emerged when the matter was first discussed at the beginning of 2013.
The most recent news update I have seen, here, reports that the New Brunswick Law Society has, by a narrow vote, re-affirmed its support for accreditation. This seems to mean that overall 3 Provinces have now officially voted against accreditation, 2 (including New Brunswick) have voted in favour, and 2 others have not taken a final position. It will be interesting to see whether those who are supposed to be the defenders of the rule of law in Canada, the lawyers, are willing to support freedom of religion, or instead are determined to characterise an adherence to established Biblical morality as “homophobic”. As noted in my 2013 piece, the overall implications for the involvement of committed Christians in public life generally are fairly disturbing. Still, since the Supreme Court of Canada in 2001 has already decided that TWU could train teachers for Canada, I have some hope that if the matter proceeds through the courts the SCC will once again find in favour of religious freedom.
To quote from my previous paper:
Of course it need not be said that if students or staff at TWU engage in unlawful discrimination while studying or teaching, or once they have graduated, then the law will apply to them. But the argument that TWU ought not to be accredited to graduate lawyers boils down in the end to an argument that no-one holding to a Biblical view of sexual morality is fit to hold public office in a Western society today. It is an argument that is not legally sound in Canadian law, and ought to be rejected by anyone who supports a balanced view of human rights, which includes not only anti-discrimination rights, but rights of freedom of religion.