(July 10, 2015) On July 2, 2015, the Divisional Court of Ontario upheld the legality of a vote taken by Ontario’s Law Society (Law Society of Upper Canada) in April that denied accreditation to the proposed law school at Trinity Western University. (Trinity Western University v. The Law Society of Upper Canada, 2015 ONSC 4250, Ontario Courts.) The decision does not stop Trinity Western University from opening a law school, but it does prevent its students from being automatically eligible to the Ontario Bar. Every application from a Trinity Western University graduate would be considered individually by the Law Society of Upper Canada. (Id. para. 121).
Trinity Western is a private Christian university in British Columbia. In order to attend the university, students must agree to live according to a code of conduct established by the administration. The “Community Covenant” encourages many virtues and values of the Christian faith and also imposes many of the standard clauses found in student-university administration agreements. (Trinity Western University v. The Law Society of Upper Canada, supra, para. 13.)
The controversy regarding the “Community Covenant” is rooted in the clauses pertaining to sexual morality. Students must abstain from all sexual activity outside of the marriage between a man and a woman. As such, LGBTQ students can attend the school, but cannot engage in any sexual activity, even if they are married. Heterosexual couples must abstain until marriage. Violation of the terms in the “Community Covenant” can lead to suspension and expulsion. (Id. para. 106.)
The Court’s Review
The Divisional Court performed a judicial review of the vote by the Law Society of Upper Canada at the request of Trinity Western University. As the Court explained, its role was to determine whether or not the decision taken by the Law Society of Upper Canada balanced the Charter rights of each group.
On judicial review, the question then becomes whether the decision reached reflects a proportionate balancing of the Charter protections at play. The end result of the analysis was noted by the court in Doré, at para. 58: If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable. (Id. para. 93.)
The three justices found that the Law Society of Upper Canada came to a reasonable decision, following a proportionate balancing of the Charter rights in question, the freedom of religion, and the right of LGBTQ individuals to equal opportunity on a merit basis. (Id. paras. 102 & 124; Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c.11 (U.K.), ss. 2(a), 15).)
In exercising its mandate to advance the cause of justice, to maintain the rule of law, and to act in the public interest, the respondent was entitled to balance the applicants’ rights to freedom of religion with the equality rights of its future members, who include members from two historically disadvantaged minorities (LGBTQ persons and women). It was entitled to consider the impact on those equality rights of accrediting TWU’s law school, and thereby appear to give recognition and approval to institutional discrimination against those same minorities. Condoning discrimination can be ever much as harmful as the act of discrimination itself. (Trinity Western University v. The Law Society of Upper Canada, supra, para. 116.)
The Court also held that imposing the Community Covenant on students was a discriminatory practice:
The respondent was also entitled, in the exercise of its statutory authority, to refuse to accredit TWU’s law school arising from the discriminatory nature of the Community Covenant. It remains the fact that TWU can hold and promote its beliefs without acting in a manner that coerces others into forsaking their true beliefs in order to have an equal opportunity to a legal education. It is at that point that the right to freedom of religion must yield: Big M Drug Mart Ltd. at para. 123(QL); Loyola at para. 63. (Id. para.117.)
On the Supreme Court decision of TWU University v. British Columbia College of Teachers ( 1 S.C.R. 772, JUDGMENTS OF THE SUPREME COURT OF CANADA), which had found that the application of the Community Covenant at Trinity Western University’s teachers college was not a cause to deny accreditation, the justices distinguished the two cases based on fact and the nature of the question at hand. They further held that Canadian courts had evolved and that the principles of the 2001 decision could very well be reviewed. (Trinity Western University v. The Law Society of Upper Canada, supra, para. 70.) “Not only have there been significant developments in the law as they relate to LGBTQ individuals since 2001, as we have already explained, the circumstances and evidence in this case has, in our view, fundamentally shifted the parameters of the debate.” (Id. para. 71.)
Trinity Western University plans to appeal the decision. It is currently in similar legal battles regarding its accreditation in Nova Scotia and British Columbia. The future of the law school remains unclear, especially in light of opposition from the bar associations of certain provinces and the retraction of the support of the British Columbia Advanced Education Minister. (Trinity Western Law School: B.C. Advanced Education Minister Revokes Approval, CBC NEWS (Dec. 11, 2014).)
Prepared by Julia Heron, Law Library Intern, under the supervision of Tariq Ahmad, Senior Legal Research Analyst.