CLF intern Kinsey Brockie recaps the TWU v. Law Society of Upper Canada hearing at the Court of Appeal which took place earlier this month.
Last year, the Divisional Court of Ontario upheld the decision of the Law Society of Upper Canada (LSUC) to deny accreditation of Trinity Western University’s proposed law school. TWU appealed. On June 6-8, 2016, CLF, represented by Derek Ross, intervened at the Ontario Court of Appeal as a friend of the court, and in support of the constitutional rights and freedoms of TWU and its students.
With twelve intervenors, two parties, and standing room only in the courtroom, Mr. Robert Staley made submissions on behalf of TWU before a panel of three judges (Justices Macpherson, Cronk and Pardu). Five intervenors appeared in support of Trinity Western’s position (Seventh Day Adventist Church of Canada, Justice Centre for Constitutional Freedoms, Evangelical Fellowship of Canada/Christian Higher Education Canada, Association for Reformed Political Action, and Christian Legal Fellowship) and seven in support of the LSUC (Out on Bay Street/Outlaws, Canadian Bar Association, Canadian Secular Alliance, Lawyers’ Rights Watch, Canadian Civil Liberties Association, Advocates’ Society, and the Criminal Lawyers’ Association).
The arguments put forward by TWU and supporting intervenors appeared to be generally well received by the Court of Appeal. The judges put many of those arguments to the other side for clarification and discussion. The issue at the heart of this case was how to ensure that Charter rights and values, namely freedom of religion and association, are protected in light of the statutory objectives that govern access to the legal profession in Ontario.
CLF submitted to the court that studying in association with others who share a religious faith and religiously-informed ethic is a constitutionally protected exercise and expression of one’s religious faith. The SCC recognized this in TWU v BCCT in finding that a student’s decision to attend TWU was a means of affirming and freely expressing their religious beliefs while associating with others to put them into practice. Law students have the right to adopt personal rules of conduct based on their religious beliefs, not just as individuals, but collectively within a religious community – including at an accredited religious university. They should not be punished or disadvantaged by the state for exercising that freedom, which is the effect of the Law Society’s Decision.
The denial of accreditation to TWU infringes both the section 2(a) and section 15 rights of TWU students and has broader implications for the fundamental freedoms of all lawyers and law students – Christian and otherwise – who hold and seek to publicly express religious views on issues such as sexuality and marriage. If the Law Society of Upper Canada, and the court in turn, holds it to be contrary to the public interest for a law faculty to support a religiously-informed view of marriage then, by the same logic any lawyer who rejects the state’s views on religious or ethical issues could likewise be penalized. Furthermore, if the decision of the Divisional Court is upheld, it could create a climate where legal professionals with ‘contrary views’ in the eyes of the LSUC and the state are afraid to speak out and risk being professionally sanctioned for doing so. CLF’s factum is available here.
Religious freedom is engaged
The Appellants argued that the LSUC failed, by deciding not to accredit TWU, to undertake the proper legal analysis under Doré. Early in the hearing, Justice Cronk put it to Mr. Staley that the application of the Doré analysis was implicit in the communication that took place amongst the benchers. Mr. Staley responded by clarifying that while they may have used the right “buzz words”, not a single bencher appeared to conduct a proper Doré analysis from start-to-finish, which requires asking first whether TWU’s right to religious freedom was infringed and second whether this infringement was minimally impairing. Instead, Mr. Staley submitted that the LSUC’s decision to address a binary question – to accredit or not to accredit – by its very nature excluded the possibility of an alternative solution that minimally impaired the Appellants’ rights.
The LSUC took the position on appeal that religious freedom rights were not engaged, or that if they were, only minimally so. They based this argument on the assertion that religious association for the purposes of education is not a religious obligation, but a religious preference. Mr. Staley countered this assertion by pointing out that the test for a freedom of religion claim, according to Amselem, is not whether a practice is “obligatory”, but whether it has a nexus with religion and is a sincerely held belief or chosen practice.
For many people of faith, including Christians, religion animates their worldview and desire to associate with others – including the desire to live, to study and to worship in a community of like-minded believers. Consequently, one’s faith is not something one forfeits simply by stepping into the public square. The Charter exists to prevent that from happening and in Saguenay, the court emphasized that a neutral public space “does not mean the homogenization of private players in that space.” As CLF submitted in its factum and oral arguments, the Law Society’s failure to recognize the comprehensive nature of the Appellants’ religion and its relevance to the study and practice of law demonstrates the need for a law school like Trinity Western’s.
Stepping into the public square
At one point during the Appeal, Justice Cronk asked the LSUC how TWU’s rights have been accommodated when its accreditation has been rejected outright. She later asked what was inherently offensive about exercising legitimately held beliefs both individually and collectively and coming together to learn in a communal environment. To this Mr. Pratt, counsel for the LSUC, said that nothing is wrong until TWU steps into the public square by asking for accreditation. He went on to say that to accommodate a law school made up of individuals who adhere to Trinity Western’s philosophy would undermine society’s efforts to advance the rights of individuals who identify as LGTBQ. Mr. Pratt expressed concern that accrediting TWU will compromise public confidence in the legal system and could set a bad precedent for future cases in which the LSUC might have to confront licensees who refuse to represent clients and/or hire employees of a different sexual orientation.
The LSUC maintained that an admission scheme based on merit alone is the only viable system for Ontario’s legal profession, and the only way to maintain such a system is to deny approval of a law school that would, in the LSUC’s view, “undoubtedly discriminate.” The LSUC argued that while religious freedom includes the right to believe and conduct oneself in accordance with a code of conduct, the requirement for students, especially those who would not otherwise adopt such views, to sign the Community Covenant goes “pretty far on the spectrum of religious freedom.” Of course, Trinity Western isn’t for everyone, which the Supreme Court of Canada recognized was acceptable in a free and democratic society in 2001. The Respondent, however, submitted that accredited law schools must befor everyone and that its Decision therefore satisfies the minimal impairment requirement in Doré.
Is this case premature?
At several points during the hearing, the question arose as to whether this case is premature. Justice Cronk questioned whether the uncertainty of future eligibility is limiting the freedom of students who wish to associate now – to which interveners such as CLF and JCCF responded in the affirmative. Mr. Daniel Santoro, counsel for the intervener JCCF, argued that if the LSUC is found to have completely dismissed the rights of a whole class of people, as the Appellant argues they have, then it’s not for the court to condone this and say that it can be dealt with later. Rather, it is the role of the court to make an order and ensure it is followed. The question then becomes whether the solution proposed by the Divisional Court is right and whether the appropriate balancing of rights took place.
Because the Charter is meant to serve as a shield - protecting individuals associated with TWU while binding the Law Society as a state actor - TWU argued that no balancing of rights took place in this decision because the Appellants (and those similarly impacted by the LSUC’s decision) are the only rights-holders concerned in the Charter analysis and their rights were not adequately protected.
The LSUC argued in favour of the decision of the Divisional Court, citing Dunsmuir, where the court said that if a reasonable decision is made, the court should refrain from interfering.
What could this mean for TWU and religious minorities?
CLF submitted that while the Law Society’s refusal to accredit TWU’s proposed law school affects individual students, it has even broader implications for the vitality of Trinity Western as a religious institution as a whole. Justice Campbell, who ruled in TWU’s favour in Nova Scotia, recognized that many Christians view law as a religious calling and Justice Rand in Roncarelli v Duplessis said that refusing a person to enter or continue a calling (including one that requires a license) should only occur when admission would be unquestionably incompatible with the statutory objectives. The Law Society, therefore, needs to have a good and lawful reason for preventing a TWU graduate from entering the bar, and according to the Supreme Court of Canada (per TWU 2001 and Roncarelli), it cannot be based on religious belief alone.
The court’s conclusion on these issues will have significant implications, not only for CLF and its members but for all religious minorities in the legal profession. The profession prides itself on promoting diversity but the opposite has occurred in this case. If the LSUC’s decision is upheld, an entire class of qualified and competent graduates will be rejected solely on the basis of their religious identification and association. As CLF argued in its factum, true diversity does not stifle the expression of diverse beliefs and opinions, which are essential for a healthy democracy.
 Trinity Western University v British Columbia College of Teachers, 2001 SCC 31 at para 32,  1 SCR 772 [BCCT].
 Syndicat Northcrest v Amselem, 2004 SCC 47 at paras 43,47,66, 2 SCR 551.
 Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 at para 74,  2 SCR 3.
 Dunsmuir v New Brunswick, 2008 SCC 9 at para 41, 1 SCR 190.
 Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25 at para 230.
 Roncarelli v Duplessis,  SCR 121 at 140, 16 DLR (2d) 689.
 BCCT, supra note 1 at para 34.
 There was no dispute in this appeal, or in the court below, that TWU grads would be ethical and competent lawyers.