Next week, a longstanding dispute pitting fundamental freedoms against one another is set to be heard by the Supreme Court of Canada (SCC). Trinity Western University (TWU) is a private, evangelical Christian university in Langley, British Columbia. TWU requires its students, faculty and administrators to sign and abide by the terms of the TWU Community Covenant, which includes a stipulation requiring students to refrain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.” Individuals who breach the Community Covenant are subject to potential sanction. In 2013, TWU sought to open a law school, and it became a matter for provincial and territorial law societies across Canada to decide whether to accredit it, allowing its graduates to practice law. At issue in this case was the decision of the Ontario and British Columbia law societies not to accredit TWU’s course (which all other law societies have by 2017 done).
The decision whether to accredit TWU’s law school has been very controversial. Opponents of the proposed law school argue that the Community Covenant offends the equality guarantee in the Canadian Charter of Rights and Freedoms. Same sex marriage has been legal in Canada for over a decade. Proponents of the law school note that in addition to equality, the Charter also protects the freedom of conscience and religion as well as freedom of association.
While the competing Charter rights at play have been the focus of public debate, TWU’s status as a private institution is an important factor in this case. The Charter does not directly apply to TWU’s policies, as TWU is privately administered and the Charter only applies to the actions of government institutions.
The issue before the SCC
The Supreme Court decision will attempt to reconcile seemingly conflicting decisions from the country’s two biggest appellate courts – the Ontario Court of Appeal and the British Columbia Court of Appeal.
In Ontario, its provincial law society, the Law Society of Upper Canada (LSUC) has a statutory mandate “to protect the public interest” in carrying out its functions. Acting under this mandate, the LSUC‘s leaders, after an extensive consultation process, voted 28-21 (with one abstention) not to accredit the proposed law school. The Ontario Court of Appeal held the LSUC’s decision was reasonable, stating, “the decision to not accredit [Trinity] represents a reasonable balance between [Trinity’s religious freedom rights] under the Charter and the LSUC’s statutory objectives.”
In British Columbia, its law society, the Law Society of British Columbia (LSBC), has a statutory mandate to “uphold and protect the public interest in the administration of justice by … preserving and protecting the rights and freedoms of all persons.” The LSBC’s leadership, after holding a referendum on the issue to lawyers in the province (where 74% voted against accreditation), voted 25-1 (with four members abstaining). Unlike in Ontario, the British Columbia Court of Appeal held that the LSBC decision was unreasonable, given “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 …”
The implications of the case
The SCC decision will have three major implications for the adjudication of rights in Canada.
First, the case will provide clarity as to how administrative decision makers (ADMs) balance potentially competing Charter rights of litigants pursuant to a statutory mandate. The current law in Canada requires ADMs to “balance the Charter protections to ensure they are limited no more than is necessary given the applicable statutory objectives” when making a decision. However, as the TWU case illustrates, this framework is limited when Charter rights of individual litigants work against one another.
Second, the case provides the Supreme Court with a chance to offer guidance on deciding cases of competing rights when the Court has stated on numerous occasions that there is no hierarchy of rights under the Charter. The practical effect of ruling in favour of either the Ontario or British Columbia decision is to prioritize one Charter right over another in this case.
Lastly, the case will allow the Court to re-visit if it is appropriate to assess decisions of ADMs which implicate Charter rights on a “reasonableness” standard, as opposed to a correctness standard. In the event the SCC finds the decisions of both the Ontario Court of Appeal and British Columbia to be reasonable, TWU law school graduates will be able to practice law in all provinces and territories in Canada except for Ontario, Canada’s largest jurisdiction.