The debate over whether to recognise a proposed law school in Canada has pitted fundamental freedoms against one another.
Trinity Western University (TWU) is a private, Christian university located in the Canadian province of British Columbia. TWU requires its students, faculty and administrators to sign and abide by the terms of a Community Covenant, which includes a provision to abstain 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 December 2013 TWU received government approval from the province of British Columbia to administer a three-year undergraduate law program starting in 2016. The Community Covenant has made the decision controversial, as same sex marriage is legal in Canada.
A number of provincial law societies across Canada have decided not to accredit – or in other words, recognize – the proposed law school. An individual cannot practice law in a particular province in Canada unless his or her law degree is accredited by that province’s law society.
Notably, last April, law society leaders in Canada’s largest province, Ontario, voted against the accreditation of TWU’s proposed law school. In June, the leaders of Nova Scotia’s law society resolved not to accredit the law school unless TWU either “exempts law students from signing the Community Covenant” or “amends the Covenant for law students in a way that ceases to discriminate.” TWU has started legal proceedings in each province reviewing these decisions.
Two Canadian provinces, New Brunswick and British Columbia, originally resolved to accredit the TWU’s proposed law school but have since reversed their decisions. Leaders from the Law Society of New Brunswick resolved in September not to recognize TWU graduates, while the Law Society of British Columbia is holding a binding referendum with the province’s lawyers to decide the issue, the results of which are expected to be released on October 30.
Opponents of the proposed law school assert that the Community Covenant offends the equality guarantee in the Canadian Charter of Rights and Freedoms, while proponents note that the Charter also protects the freedom of conscience and religion as well as freedom of association.
The Canadian Charter does not directly apply to TWU’s policies, however, as TWU is privately administered and the Charter only applies to the actions of government institutions.
British Columbia’s Human Rights Code, which applies to TWU, prevents employers or individuals who provide services available to the public from discriminating on the basis of either religion or sexual orientation. However, section 41 of the Code also permits organizations like TWU to grant preference to members of an “identifiable group or class of persons” if the organization “is not operated for profit” and has “as a primary purpose the promotion of the interests and welfare of an identifiable group or class of persons” characterized by a number of grounds, including religion.
This is not the first case in which TWU’s Community Covenant has caused controversy. In the 1990s, the British Columbia College of Teachers (BCCT) refused to approve TWU’s application to assume full responsibility for a teaching education program. The College stated “the proposed program follows discriminatory practices which are contrary to the public interest and public policy.”
The Supreme Court of Canada eventually determined that this decision was incorrect and held TWU could administer a teaching education program. In resolving the competing values in the decision, the majority stated, “Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of [British Columbia], the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected.”
A factor that could be determinative in the present dispute is the standard of review by which the courts review individual law society decisions to not accredit TWU’s proposed law school. While the Supreme Court of Canada reviewed the BCCT decision on a standard of “correctness”, in recent years the Court has mandated courts to apply a more deferential standard of “reasonableness” when reviewing decisions made by administrative bodies, such as a law society.