February 23, 2017
The Supreme Court of Canada has granted leave to hear appeals from two appellate courts involving Trinity Western University (TWU)’s law school.
In a decision released this morning, leave has been granted to TWU from the Ontario Court of Appeal’s decision upholding the Law Society of Upper Canada’s (LSUC) decision to effectively preclude TWU graduates from entry into the profession. Leave has also been granted to the Law Society of British Columbia (LSBC) from the British Columbia Court of Appeal’s (BCCA) decision finding it was unreasonable for LSBC to reject TWU law graduates. The appeals will be heard together.
In Ontario, the Court of Appeal found the case raised a direct “collision between religious freedom and equality”. The Court recognized that TWU’s religious freedom was infringed, but held that it was a reasonable limit in light of the LSUC’s statutory objective to protect the public interest. The court suggested that without LSUC approval, students would still be free to attend an unaccredited law school, and that it would be premature to assess any violations of TWU graduates’ Charter rights.
In stark contrast, the five-judge panel of the BCCA unanimously concluded that it was unreasonable for the LSBC to reject TWU’s proposed law school, “[i]n light of 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 and the legal profession...” (para. 191).
The BCCA held the that impact on TWU’s religious freedom was “severe”, that regulatory approval must not be “denied based on the state’s fear of being seen to endorse the beliefs of the institution or individual” and that there must be “room for diverse communities to hold and act on their beliefs”. Disagreement and discomfort is inevitable and “unavoidable in a free and democratic society”.
In its concluding remarks, the BCCA held that:
"A society that does not admit of and accommodate difference 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."
With such contradictory findings from two provincial courts of appeal it is not surprising that the Supreme Court has granted leave to appeal.
CLF will file a motion for leave to intervene as a friend of the court. As Justice Nordheimer noted in his intervention decision in Ontario, CLF “has a more direct role in the issues raised and more directly addressed some of the broader issues that the court will have to consider.”
CLF has intervened at all levels of court in all jurisdictions in which this litigation has occurred (Nova Scotia, Ontario and British Columbia) and has argued that the public interests in equality, diversity and pluralism include welcoming religious minorities as active participants in society. The outcome of these appeals has the potential to be a watershed moment in the interpretation, application, and nature of religious freedom in Canada. CLF will continue to argue for a robust understanding of religious freedom for all Canadians, including those law students who wish to study law at an institution with an underlying Christian philosophy and viewpoint.
To read the various court decisions and see CLF’s intervention work in the TWU matters, please click here.