LSBC's Rejection of TWU Overturned by BC Supreme Court

Yesterday (December 10, 2015), TWU succeeded in its case against the Law Society of British Columbia (LSBC). Justice Hinkson of the B.C. Supreme Court found that the LSBC decision to reject TWU’s proposed law school was both procedurally unfair and substantively incorrect.

Christian Legal Fellowship (CLF) intervened in the proceedings. CLF submitted that it is not contrary to the public interest for a prospective lawyer to study at a law school that adheres to lawful, if unfashionable, ethical beliefs. By characterizing TWU’s admissions policy as discriminatory and making that the basis for not approving its law school, CLF submitted, the LSBC overlooked TWU’s right as a religious educational institution to promote ethics consistent with its underlying beliefs and teachings in order to maintain its religious identity and ethos. CLF also defended the right of religious students to not be deprived of the opportunity to obtain a professional licence because of their religious beliefs or their association with those who hold and manifest such beliefs.

Justice Hinkson found that the LSBC’s statutory authority to consider the “public interest” is broader than the authority to set standards for competence, meaning the LSBC could take TWU’s Community Covenant into consideration in making its decision. The Divisional Court in Ontario held likewise, whereas Justice Campbell in Nova Scotia did not. While this conclusion would seem to open the door to substantive consideration of Charter issues, the case was ultimately decided on administrative law grounds.

This question of the LSBC’s jurisdiction was decided on a correctness standard, in keeping with TWU v BCCT (2001), but in contrast to the recent Divisional Court ruling in Ontario. The standard of review for determining whether the LSBC complied with its duty of procedural fairness was also correctness, and here the LSBC failed.

The LSBC “fettered its discretion”, thus violating procedural fairness, by allowing itself to be bound by a popular vote of LSBC members against approving TWU, rather than having the LSBC Benchers make that decision independently after due consideration of the relevant legal issues in play. The LSBC also violated TWU’s right to procedural fairness by depriving it of a meaningful opportunity to present its case fully and fairly to those who had the jurisdiction to determine whether the JD degrees of the proposed law school‘s graduates would be recognized by the LSBC.

With respect to the constitutional freedoms implicated by the LSBC’s decision, Justice Hinkson commented, “I am not persuaded that the circumstances or the jurisprudence respecting human rights have so fundamentally shifted the parameters of the debate as to render the decision in TWU v. BCCT other than dispositive of many of the issues in this case.” This contrasts with the Divisional Court of Ontario’s finding that TWU v. BCCT was not binding. Justice Hinkson also disagreed with the Divisional Court of Ontario that TWU v. BCCT could be distinguished based on the facts.

Otherwise, however, the decision gave little attention to the substantive Charter rights and freedoms in issue. Justice Hinkson did at least assert that the LSBC is obligated to exercise its statutory discretion in accordance with the Charter, meaning it must conduct a proper balancing of statutory objectives andCharter implications must be conducted. While the outcome is favourable, there was not a declaration that such a balancing must necessarily result in a decision in TWU’s favour.

CLF expects the substantive Charter issues to be addressed in detail in the appeals in Ontario, Nova Scotia, and possibly B.C. if the LSBC appeals.

CLF Appears Before Federal Panel on Assisted Suicide

In just three months, the Supreme Court of Canada’s partial invalidation of the criminal prohibition on assisted suicide in Carter v Canada will take effect.

Christian Legal Fellowship (CLF) was an intervenor in Carter at all three levels of court (see CLF’s facta here), relying on the core legal (and for CLF, religiously-informed) principle of the inviolability of life. CLF advocated that the lives of all persons are equally valuable, despite the many inequalities (physical/mental ability, bodily health, etc.) that might exist, and that the state must guard the lives of all persons impartially, and not differentially value their lives.

Federal Response

Parliament has established an “External Panel on Options for a Legislative Response to Carter v. Canada”(the “Panel”). The Panel’s mandate is to consult with key stakeholders on issues that are fundamental to a federal legislative response to the Carter ruling and to provide a final report to the Ministers of Justice and Health.

CLF was invited by the Panel to engage in a direct consultation based on its interventions in Carter. CLF, represented by Executive Director Derek Ross and associate legal counsel John Sikkema, met with the Panel today in Toronto and made both oral and written submissions on a number of questions of law and ethics (written submissions available on CLF’s website).

CLF submitted that the broader ethical, moral, social, and cultural issues resulting from the legalization of physician-assisted suicide were not adequately addressed in Carter and need to be carefully examined before a new regime is introduced.  CLF stressed that more time is needed for this vital process and encouraged the panel to recommend that Parliament request an extension of time to do so.

CLF also submitted that the Supreme Court of Canada (SCC) in Carter did not impose a value judgement that assisted suicide and euthanasia are good “services” for society that must therefore be funded and facilitated by the government. Rather, the SCC ruled that a blanket criminal prohibition was a broader than necessary means for achieving Parliament’s legislative objective—which the SCC interpreted as protecting vulnerable persons from being induced to commit suicide in a moment of weakness. CLF’s submission explained that it remains open to Parliament to re-enact a complete ban pursuant to the objective of maintaining the longstanding legal principle of the inviolability of life (an issue which was not addressed by the SCC in Carter), and detailed why a complete ban remains the best legislative option available.

Should Parliament choose not to (re)enact a complete ban, however, CLF submitted that Parliament retains jurisdiction over the “matter” of assisted suicide and must enact strict limits on this practice, along with comprehensive safeguards and oversight mechanisms, to protect the vulnerable in as much as this is possible. CLF also advocated for improved access to good palliative care for patients.

Finally, CLF advocated for the protection of physicians’ (and others’) freedom of religion and/or conscience by making it an offence to pressure a person to participate, directly or indirectly, in assisted suicide or euthanasia.

Provincial Response

CLF was also invited by a group established by provincial/territorial governments - the Canadian Provincial/Territorial Expert Advisory Group on Physician-Assisted Dying – to participate in a separate consultation by completing a detailed survey. The survey contained questions on a wide range of issues including eligibility for “aid in dying”, how capacity should be assessed, the role of physicians and other health care workers, the role of health care institutions, conscientious objection, regulatory oversight, and various procedural matters.

The underlying premise of the survey, however, was that either the provinces or the medical regulatory bodies should develop legislation or policies to ensure “equitable access” to “aid in dying” as a medical service. CLF’s response to the survey (available here) emphasized that Carter required a limited exception to a Criminal Code prohibition, the parameters of which should be set out by Parliament, and that in light of the limited scope of its declaration (para 127), assisted death should be exceedingly rare. CLF also submitted that this process was premature in light of the fact that legislation has not yet been enacted by Parliament.