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COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation:
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Trinity Western University v. The Law Society of
British Columbia,
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2016 BCCA 423
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Date: 20161101
Docket: CA43367
Between:
Trinity Western
University and Brayden Volkenant
Respondents
(Petitioners)
And
The Law Society of
British Columbia
Appellant
(Respondent)
And
Association
for Reformed Political Action (ARPA) Canada, Canadian Council of Christian
Charities, Christian Legal Fellowship, Evangelical Fellowship of Canada,
Christian Higher Education Canada, Justice Centre for Constitutional Freedoms, Roman
Catholic Archdiocese of Vancouver, Catholic Civil Rights League, Faith and
Freedom Alliance, Seventh-Day Adventist Church in Canada, West Coast Women’s
Legal Education and Action Fund, Canadian Secular Alliance, British
Columbia Humanist Association, The Advocates’ Society, Outlaws UBC, Outlaws UVic,
Outlaws TRU and QMUNITY
Intervenors
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Before:
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The Honourable Chief Justice Bauman
The Honourable Madam Justice Newbury
The Honourable Mr. Justice Groberman
The Honourable Mr. Justice Willcock
The Honourable Madam Justice Fenlon
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On appeal from: An
order of the Supreme Court of British Columbia, dated December 10, 2015 (Trinity
Western University v. The Law Society of British Columbia, 2015 BCSC 2326,
Vancouver Docket No. 149837).
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Counsel for the Appellant:
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P.A. Gall, Q.C.
D.R. Munroe, Q.C. |
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Counsel for the Respondents:
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K.L. Boonstra
K. Sawatsky J.B. Maryniuk |
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Counsel for the Intervenor, Association for Reformed
Political Action (ARPA) Canada
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E.L. Vandergriendt
A. Schutten |
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Counsel for the Intervenor, Canadian Council of Christian
Charities
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B.W. Bussey
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Counsel for the Intervenor, Christian Legal Fellowship
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D.B.M. Ross
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Counsel for the Intervenors, Evangelical Fellowship of
Canada and Christian Higher Education Canada
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G. Trotter
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Counsel for the Intervenor, Justice Centre for
Constitutional Freedoms
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R.J. Cameron
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Counsel for the Intervenors, Roman Catholic Archdiocese of
Vancouver, Catholic Civil Rights League, and Faith and Freedom Alliance
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G.C. Allison
M. Wolfson, Articled Student |
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Counsel for the Intervenor, Seventh-Day Adventist Church
in Canada
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G.D. Chipeur, Q.C.
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Counsel for the Intervenor, West Coast Women’s Legal Education
and Action Fund
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J. Winteringham, Q.C.
R. Trask J.R. Lithwick |
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Counsel for the Intervenors, Canadian Secular Alliance,
and British Columbia Humanist Association
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T. Dickson
C. George |
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Counsel for the Intervenor, The Advocates’ Society
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M. Pongracic-Speier
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Counsel for the Intervenors, Outlaws UBC, Outlaws UVic,
Outlaws TRU and QMUNITY (the “LGBTQ Coalition”)
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E.R.S. Sigurdson
K. Brooks |
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Place and Date of Hearing:
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Vancouver, British
Columbia
June 1, 2, and 3,
2016
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Written Submissions Received
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July 18, 25, and 29,
2016
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Place and Date of Judgment:
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Vancouver, British
Columbia
November 1, 2016
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Written Reasons of the Court
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Table of
Contents
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Paragraph Range
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[1] - [4]
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[5] - [50]
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[5] - [9]
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[10] - [20]
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[21] - [24]
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[25] - [26]
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[29] - [30]
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[31] - [31]
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[32] - [40]
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[41] - [47]
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[42] - [44]
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[45] - [47]
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[48] - [50]
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[51] - [51]
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[52] - [193]
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[52] - [59]
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[60] - [91]
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[62] - [64]
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[65] - [91]
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[67] - [77]
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[78] - [91]
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[92] - [97]
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[98] - [193]
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[98] - [116]
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[117] - [134]
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[118] - [121]
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[122] - [134]
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[135] - [189]
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[148] - [162]
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[163] - [189]
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[167] - [169]
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[170] - [189]
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[190] - [193]
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[194] - [194]
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Summary:
The Law Society decided not to
approve a law school at TWU because students attending TWU must sign a
Community Covenant which does not recognize same-sex marriage. TWU sought
judicial review. The decision was set aside by the chambers judge. The Law
Society appealed. Held: Appeal dismissed.
The issue on appeal is
whether the Law Society met its statutory duty to reasonably balance the
conflicting Charter rights engaged by its decision: the sexual orientation
equality rights of LGBTQ persons and the religious freedom and rights of association
of evangelical Christians. The Benchers initially voted to approve TWU’s law
school. That decision was met with a backlash from members of the Law Society
who viewed it as endorsement of discrimination against LGBTQ persons. The
Benchers decided to hold a referendum and to be bound by the outcome. A
majority of lawyers voted against approval. The Benchers then reversed their
earlier position and passed a resolution not to approve TWU’s law school.
In doing so, the Benchers
abdicated their responsibility to make the decision entrusted to them by the Legislature.
They also failed to weigh the impact of the decision on the rights engaged. It
was not open to the Benchers to simply adopt the decision preferred by the
majority. The impact on Charter rights must be assessed concretely, based on
evidence and not perception.
The evidence before the
Law Society demonstrated that while LGBTQ students would be unlikely to access
the 60 additional law school places at TWU’s law school if it were approved, the
overall impact on access to legal education and hence to the profession would
be minimal. Some students who would otherwise have occupied the remaining 2,500
law school seats would choose to attend TWU, resulting in more options for all
students. Further, denying approval would not enhance access to law school for
LGBTQ students.
In contrast, a decision
not to approve TWU’s law school would have a severe impact on TWU’s rights. The
qualifications of students graduating from TWU’s law program would not be recognized
and graduates would not be able to apply to practise law in British Columbia.
The practical effect of non-approval is that TWU cannot operate a law school
and cannot therefore exercise fundamental religious and associative rights that
would otherwise be guaranteed under s. 2 of the Charter.
In a diverse and
pluralistic society, government regulatory approval of entities with differing
beliefs is a reflection of state neutrality. It is not an endorsement of a
group’s beliefs.
The Law Society’s decision
not to approve TWU’s law school is unreasonable because it limits the right to
freedom of religion in a disproportionate way — significantly more than is
reasonably necessary to meet the Law Society’s public interest objective.
Reasons for Judgment of the Court:
I. INTRODUCTION
[1]
This case raises important issues about tolerance and respect for
differences in a diverse and pluralistic society. Trinity Western University
(TWU) wishes to operate a law school. The Law Society of British Columbia (the
Law Society) refused to approve TWU’s proposed law school because TWU’s Community
Covenant does not recognize same-sex marriage.
[2]
The question before the Court is whether the Law Society’s decision was
reasonable. Answering that question requires us to consider conflicting and strongly-held
views, and to reconcile competing rights. On one side are the rights, freedoms
and aspirations of lesbian, gay, bisexual, transgendered and queer (LGBTQ)
persons and their place in a progressive and tolerant society; on the other are
the religious freedom and rights of association of evangelical Christians who
sincerely hold the beliefs described in the Covenant and nurtured by TWU.
[3]
In a speech given in 2002, Chief Justice McLachlin spoke of the “clash
of commitments” in our country between the “prevailing ethos” of the rule of
law and the claims of religion (“Freedom of Religion and the Rule of Law” (René
Cassin Lecture, McGill University, 11 October 2002), published in Douglas
Farrow, ed., Recognizing Religion in a Secular Society: Essays in Pluralism,
Religion, and Public Policy (McGill-Queen’s University Press, 2004). The
Chief Justice called this a “dialectic of normative commitments” at 21-22:
What is good, true and just in
religion will not always comport with the law’s view of the matter, nor will
society at large always properly respect conscientious adherence to alternate
authorities and divergent normative, or ethical, commitments. Where this is so,
two comprehensive worldviews collide. It is at this point that the question of
law’s treatment of religion becomes truly exigent. The authority of each is
internally unassailable. What is more, both lay some claim to the whole of
human experience. To which system should the subject adhere? How can the rule
of law accommodate a worldview and ethos that asserts its own superior
authority and unbounded scope? There seems to be no way in which to reconcile
this clash; yet these clashes do occur in a society dedicated to protecting
religion, and a liberal state must find some way of reconciling these competing
commitments.
[4]
For reasons explained in greater detail below, we have determined that
the Law Society’s decision not to approve TWU’s law school was unreasonable.
II. BACKGROUND
1. The TWU Initiative
[5]
TWU is a private, evangelical Christian, postsecondary institution
incorporated by act of the Provincial Legislature in 1969: An Act Respecting Trinity Western University, S.B.C. 1969, c. 44 (as amended). It is the successor to a
postsecondary institution that has been in existence since 1962.
[6]
In June 2012 TWU submitted a proposal to establish a law school with a Juris
Doctor degree program to the Federation of Law Societies of Canada (the
Federation) and to the British Columbia Ministry of Advanced Education for
their approval. The proposal contemplated the enrolment of 60 students in the school’s
first year of operation, which was then contemplated to be the 2016-17 academic
year, increasing to a full complement of 170 students over three years. TWU also
advised the Canadian Council of Law Deans, the British Columbia law deans and
the Law Society of its proposal.
[7]
The Federation established a special advisory committee to provide it
with advice on one issue — TWU’s requirement that students enter into a community
covenant (the Covenant) regulating their conduct as a condition of admission.
After considering submissions, that committee concluded there was no valid
public interest reason to refuse approval of the TWU proposal.
[8]
On December 16, 2013 the Federation granted “preliminary approval” of the
proposal and the establishment of TWU’s law school. The Federation concluded
that the proposal was “comprehensive and is designed to ensure the students
acquire each competency included in the national requirement”. The Federation
expressly considered whether the religious policy underlying the Covenant would
constrain appropriate teaching. In approving the proposal the Federation took
into account TWU’s statements that it was committed to fully and properly
addressing ethics and professionalism; that it recognized and acknowledged its
duty to teach equality and meet its public obligations with respect to
promulgating non-discriminatory principles in its teaching of substantive law,
ethics and professionalism; and that it acknowledged that human rights laws and
s. 15 of the Canadian Charter of Rights and Freedoms, Part I
of the Constitution Act, 1982 protect against discrimination on
the basis of sexual orientation.
[9]
The Minister of Advanced Education comprehensively reviewed the TWU
proposal pursuant to the Degree Authorization Act, S.B.C. 2002, c. 24.
The proposal was submitted to the Degree Quality Assessment Board and reviewed
by an expert panel consisting of academics including former deans of the law faculties
of the University of Alberta, Queen’s, UBC and Windsor. On April 17, 2013 the
expert review panel provided a report to the Ministry and, in confidence, to
TWU. On December 17, 2013 the Minister granted approval to the TWU Juris Doctor
program.
2. The April 11, 2014 Benchers’ Resolution
[10]
Upon being advised that the Federation had granted preliminary approval
of TWU’s proposal, and upon taking legal advice, the Benchers of the Law
Society gave notice to the profession on January 24, 2014 of their intention to
consider the following resolution at their April 11, 2014 meeting:
Pursuant to Law Society Rule 2-27(4.1);
the Benchers declare that, notwithstanding the preliminary approval granted to
Trinity Western University on December 16, 2013 by the Federation of Law
Societies’ Canadian Common Law Program Approval Committee, the proposed Faculty
of Law of Trinity Western University is not an approved faculty of law.
[11]
Rule 2-27(4.1) (now Rule 2-54(3)) was in that part of the Law Society
Rules that addresses admission to the practice of law:
2-54 (1) An applicant may
apply for enrolment in the admission program at any time by delivering to the
Executive Director the following:
(a) a completed
application for enrolment in a form approved by the Credentials Committee,
including a written consent for the release of relevant information to the
Society;
(b) proof of academic
qualification under subrule (2);
(c) an articling
agreement stating a proposed enrolment start date not less than 30 days from
the date that the application is received by the Executive Director;
(d) other documents
or information that the Credentials Committee may reasonably require;
(e) the application
fee specified in Schedule 1.
(2) Each of the following constitutes academic
qualification under this rule:
(a) successful
completion of the requirements for a bachelor of laws or the equivalent degree
from an approved common law faculty of law in a Canadian university;
(b) a Certificate of
Qualification issued under the authority of the Federation of Law Societies of
Canada;
(c) approval by the
Credentials Committee of the qualifications of a full-time lecturer at the
faculty of law of a university in British Columbia.
(3) For the purposes of this rule, a common
law faculty of law is approved if it has been approved by the Federation of Law
Societies of Canada unless the Benchers adopt a resolution declaring that it is
not or has ceased to be an approved faculty of law.
[Emphasis added.]
[12]
Prior to its consideration of that resolution, the Law Society received
from TWU a consolidated proposal for the establishment of the law school, a
brochure containing information about TWU, and a complete copy of the Covenant.
[13]
The Covenant is a five-page document which includes the following
relevant provisions:
Trinity Western University (TWU) is a Christian University of
the liberal arts, sciences and professional studies with a vision for
developing people of high competence and exemplary character who distinguish
themselves as leaders in the marketplaces of life.
…
The University’s mission, core values, curriculum and
community life are formed by a firm commitment to the person and work of Jesus
Christ as declared in the Bible. This identity and allegiance shapes an
educational community in which members pursue truth and excellence with grace
and diligence, treat people and ideas with charity and respect, think
critically and constructively about complex issues, and willingly respond to
the world’s most profound needs and greatest opportunities.
…
The community covenant is a solemn pledge in which members
place themselves under obligations on the part of the institution to its
members, the members to the institution, and the members to one another. In
making this pledge, members enter into a contractual agreement and a relational
bond. By doing so, members accept reciprocal benefits and mutual
responsibilities, and strive to achieve respectful and purposeful unity that
aims for the advancement of all, recognizing the diversity of viewpoints, life
journeys, stages of maturity, and roles within the TWU community. It is vital
that each person who accepts the invitation to become a member of the TWU
community carefully considers and sincerely embraces this community covenant.
…
The TWU community covenant involves a commitment on the part
of all members to embody attitudes and to practise actions identified in the
Bible as virtues, and to avoid those portrayed as destructive. Members of the
TWU community, therefore, commit themselves to:
·
cultivate Christian virtues, such as love, joy, peace, patience,
kindness, goodness, faithfulness, gentleness, self-control, compassion,
humility, forgiveness, peacemaking, mercy and justice
·
live exemplary lives characterized by honesty, civility, truthfulness,
generosity and integrity
…
·
treat all persons with respect and dignity, and uphold their
God-given worth from conception to death
…
·
observe modesty, purity and appropriate intimacy in all
relationships, reserve sexual expressions of intimacy for marriage, and within
marriage take every reasonable step to resolve conflict and avoid divorce
·
exercise careful judgment in all lifestyle choices, and take
responsibility for personal choices and their impact on others
…
In keeping with biblical and TWU ideals, community members
voluntarily abstain from the following actions:
·
communication that is destructive to TWU community life and inter–personal
relationships, including gossip, slander, vulgar/obscene language, and
prejudice
…
·
sexual intimacy that violates the sacredness of marriage between
a man and a woman
…
People face significant challenges in practicing biblical
sexual health within a highly sexualized culture. A biblical view of sexuality
holds that a person’s decisions regarding his or her body are physically,
spiritually and emotionally inseparable. Such decisions affect a person’s
ability to live out God’s intention for wholeness in relationship to God, to
one’s (future) spouse, to others in the community, and to oneself. Further,
according to the Bible, sexual intimacy is reserved for marriage between one
man and one woman, and within that marriage bond it is God’s intention that it
be enjoyed as a means for marital intimacy and procreation. Honouring and
upholding these principles, members of the TWU community strive for purity of
thought and relationship, respectful modesty, personal responsibility for
actions taken, and avoidance of contexts where temptation to compromise would
be particularly strong.
[Footnotes omitted.]
[14]
In support of the provisions relating to sexual behaviour, the Covenant
refers in footnotes to passages from the Bible in support of the drafters’
conception of virtuous and destructive practices.
[15]
We note that it is the Covenant’s definition of marriage “between a man
and a woman” that is in issue in these proceedings. The Covenant prohibits all
expressions of sexual intimacy outside of marriage, regardless of sexual
orientation; in that respect, all students are treated equally. However, the
Covenant recognizes the marriage of heterosexual couples only; expressions of
sexual intimacy between same-sex married couples remain prohibited. It is in
this respect that LGBTQ persons are treated unequally.
[16]
Prior to their April 11, 2014 meeting, the Benchers provided TWU with a
copy of the transcript of a February 28, 2014 Benchers’ meeting and copies of
input subsequently received from the profession and the public. TWU was invited
to provide written submissions to the Benchers and to attend and be heard at
the April 11, 2014 meeting.
[17]
Before that meeting the Benchers sought the following information:
a) BC
Human Rights Commission Annual Reports of complaints and its statistics on
areas of discrimination;
b) the
Law Society’s Equity Ombudsperson’s 2011 report on areas of discrimination;
c) information
from Canadian law deans regarding “any trouble [that] they have had with
Trinity Western graduates, in particular in the area of anti-gay activities”;
d) information
on the American Bar Association’s anti-discrimination policy and details and
background regarding exemptions for religious law schools;
e) details
of Law Society discipline matters regarding anti-gay activity; and
f) information
from TWU with respect to the number of people disciplined for engaging in
prohibited activities and a breakdown and details of areas of discipline.
[18]
In its written submission dated April 3, 2014, TWU advised the Benchers
that in the ten years preceding the application there had been an average of
fewer than three instances per year of sexual misconduct by students, including
reports of unwelcome sexual advances. In two instances students had withdrawn
from TWU, and there had been “occasional” suspensions of students or placement
of students on probation. No case had resulted in expulsion from the
University. Two faculty/staff had been disciplined for instances of sexual
harassment.
[19]
On April 8, 2014 the President of the Law Society asked the President of
TWU, on behalf of a Bencher, whether TWU would consider an amendment to the
Covenant with respect to sexual intimacy. In response TWU advised the Law
Society:
[The Covenant] is an expression of the religious beliefs of
TWU and its community that is necessary for TWU to live out its purposes as a
Christian university. It is critical for TWU, as a private religious
educational community, to be able to define its important religious values
consistent with its biblical beliefs. TWU is a Christian university that
primarily serves the evangelical Christian community (and that may include
others that are prepared to learn in an environment of which the Community Covenant
is an important part).
The religious beliefs about marriage and human sexuality are
important enough to TWU’s community to be included in the Community Covenant.
It speaks of the sacredness of marriage, not for civic purposes but for
religious purposes. …
It should be beyond question that these beliefs were not
created to communicate anything disparaging about members of the LGBTQ
communities. The Community Covenant speaks to that most strongly in terms of
treating all persons with “respect and dignity, and uphold their God-given
worth”. This is equally a fundamental aspect of TWU’s religious beliefs.
TWU’s sincerely held religious beliefs about marriage and
human sexuality may not be widely held by others in society. As a result, these
beliefs may not be valued, or even seen as legitimate. This is precisely why s. 2(a)
and s. 15 of the Charter shield TWU’s community from interference.
The Charter shields TWU and allows it to define its own religious beliefs
and values.
…
TWU cannot simply disavow those
beliefs in the hope or expectation of a positive result from the Benchers and
should not be asked to do so.
[20]
The transcript of the meeting of the Benchers on April 11, 2014 reflects
a conscientious consideration of the motion before the Benchers and of legal
opinions sought by the Law Society and the submissions of members of the
Society, the public and TWU. Seven Benchers voted in favour of the resolution
to declare that TWU was not an approved faculty of law. Twenty Benchers voted
against the motion. The motion was therefore defeated.
3. The June 10, 2014 Members’ Resolution
[21]
Following the meeting of April 11, 2014 the Executive Director of the
Law Society received a written request pursuant to what was then Rule 1-9(2) of
the Law Society Rules. It required the Benchers to convene a special general
meeting of the Law Society to consider a resolution in the following terms:
WHEREAS:
-Section 28 of the Legal
Profession Act permits the Benchers to take steps to promote and improve
the standard of practice by lawyers, including by the establishment,
maintenance and support of a system of legal education;
-Trinity Western University
requires students and faculty to enter into a covenant that prohibits “sexual
intimacy that violates the sacredness of marriage between a man and woman”;
-The Barristers’ and
Solicitors’ Oath requires Barristers and Solicitors to uphold the rights and
freedoms of all persons according to the laws of Canada and of British
Columbia;
-There is no compelling evidence
that the approval of a law school premised on principles of discrimination and
intolerance will serve to promote and improve the standard of practice of
lawyers as required by section 28 of the Legal Profession Act; and
-The approval of Trinity Western
University, while it maintains and promotes the discriminatory policy reflected
in the covenant, would not serve to promote and improve the standard of
practice by lawyers;
THEREFORE:
The benchers are directed to
declare, pursuant to Law Society Rule 2-27 (4.1), that Trinity Western
University is not an approved faculty of law.
[22]
Members of the Law Society received notice of a Special General Meeting and
a message from the Benchers providing the following advice about their April
11, 2014 decision:
The decision was made after a thoughtful and sometimes
emotional expression of views and careful consideration of two Federation reports
on the Trinity Western University application, nearly 800 pages of submissions
from the public and the profession and a submission from TWU, and after
thoroughly considering the judgment of the Supreme Court of Canada in Trinity
Western University v. British Columbia College of Teachers 2001 SCC 31… and
its applicability to the TWU application. In addition, the Benchers considered
a memorandum from former Chief Justice Finch on the relevant considerations and
additional legal opinions as follows:
1. Finch/Banks - Overview Brief re: Relevant
Considerations for the Law Society in Relation to the Proposed Faculty of Law
at TWU
2. Laskin Opinion on Applicability of SCC Decision in TWU
v. BCCT
3. Gomery Opinion on Academic Qualifications
4. Gomery Opinion on Application of the Charter
5. Gomery Opinion on Scope of Law Society’s Discretion
under Rule 2-27 (4.1)
6. Thomas/Foy Opinion on Application of the Labour
Mobility Act and the Agreement on Internal Trade.
Those materials were made available to members on the Law
Society website.
[23]
By notice to the profession dated June 2, 2014 the Benchers stated they
would refrain from speaking to the resolution at the Special General Meeting
because they had already considered the issue on April 11, 2014 and wished to
have members’ voices, “both for and against, fully heard.”
[24]
The Special General Meeting took place on June 10, 2014 at 16 locations
across the province; 3,210 members of the Law Society voted for the resolution
and 968 against.
4. The September 26, 2014 Benchers’ Resolution
[25]
The Benchers next scheduled a meeting for September 26, 2014 to consider
the resolution of the members. TWU was notified that the Benchers intended to
consider three motions:
a) a motion to implement the June 10, 2014 resolution of
the members;
b) a motion to call for a referendum to consider a
resolution that would be binding on the Benchers; and
c) a motion to postpone consideration of the approval of
the TWU accreditation until after judgment in one of the then-pending cases
before the superior courts of British Columbia, Ontario or Nova Scotia.
[26]
In response, TWU took the position that there was no legal basis upon
which the Benchers could adopt the members’ June 10, 2014 resolution or call
for a binding referendum, and that to do so would be a breach of the Benchers’
statutory duties and an inappropriate delegation of their responsibilities.
[27]
At their meeting of September 26,
2014 the Benchers resolved to be bound by a referendum on the following terms:
BE IT
RESOLVED THAT:
1. A referendum … be conducted of all members of the Law
Society of British Columbia (the “Law Society”) to vote on the following
resolution:
“Resolved that the Benchers
implement the resolution of the members passed at the special general meeting
of the Law Society held on June 10, 2014, and declare that the proposed law
school at Trinity Western University is not an approved faculty of law for the
purpose of the Law Society’s admissions program.”
2. The Resolution will be binding and will be implemented
by the Benchers if at least:
a) 1/3 of all members in good standing of the Law Society
vote in the Referendum; and
b) 2/3 of those voting vote in favour of the Resolution.
3. The Benchers hereby determine that implementation
of the Resolution does not constitute a breach of their statutory duties, regardless
of the results of the Referendum.
4. The Referendum be conducted as soon as possible and
that the results of the Referendum be provided to the members by no later than
October 30, 2014.
[Emphasis added.]
The other motions before the Benchers were defeated.
[28]
Members of the Law Society were
permitted to vote on the referendum until October 29, 2014. On October 30, 2014
TWU was advised of the referendum results: 5,951 lawyers were in favour of
declaring that the proposed law school was not an approved faculty of law;
2,088 lawyers voted against the resolution. There were 8,039 valid ballots
cast. A total of 13,350 practising, non-practising and retired lawyers had been
entitled to vote.
5. The October 31, 2014 Benchers’ Resolution
[29]
The Benchers met on October 31, 2014 to consider the outcome of the
referendum. A letter to the Law Society written by the President of TWU and
additional affidavits were presented to the Benchers. The President of the Law
Society confirmed that “subject to a request by a Bencher or Benchers for
additional time to review and consider the TWU letter and attachments, a motion
to implement the referendum result will be presented on behalf of the Executive
Committee.”
[30]
A Bencher then moved for the adoption of a declaration that “pursuant to
Law Society Rule 2-27 (4.1), Trinity Western University’s proposed School of Law
is not an approved faculty of law”. The minutes of the Benchers’ meeting
following the motion read as follows:
Mr. Crossin [David
Crossin, Q.C., the 2nd Vice President of the Law Society] invited TWU President
Robert Kuhn to address the Benchers. Mr. Kuhn declined the invitation. Mr. Crossin
confirmed that the Benchers’ duty is to determine the appropriate response of
the Law Society to any issue that may arise, such that the public interest in
the administration of justice is protected.
Mr. Crossin also
confirmed that the Law Society remains ready and willing to enter into
discussion with TWU regarding amendment of TWU’s community covenant.
There being no further discussion,
Ms. Lindsay called for a vote on the motion by show of hands.
The motion was carried with 25 Benchers in favour, one
opposed and four abstaining.
6. Revocation of Ministerial Consent
[31]
On December 11, 2014 the Minister of Advanced Education, having
considered submissions of TWU, informed the President of TWU of the Minister’s
decision to revoke his consent to the proposed law program at TWU under the
Degree Authorization Act (DAA). The Minister stated:
Section 4(1) of the DAA
requires me to be satisfied that an applicant meets the published criteria in
granting consent. In this case, one of the published criteria (credential
recognition) is no longer met given the decisions of provincial law societies
not to approve the TWU law faculty. The objective of the DAA in
protecting students through the quality assurance review would be defeated if I
was unable to act on post-consent events that undermine the conditions of
consent.
…
At this point in time, I am
not making any final determination as to whether consent for the proposed law
program at TWU should be forever refused because of the lack of regulatory body
approval. Instead, I am making an interim determination that steps must be
taken to protect the interests of prospective students until TWU’s legal
challenge to the decision of the Law Society of BC (as well as challenges to
law societies in other provinces) have been resolved.…The merits of TWU’s
challenge are for the court to address; my concern is simply to protect the
interests of prospective students while the challenge is being pursued.
7. Concurrent Consideration of TWU Accreditation
[32]
As the Minister indicated, accreditation of the TWU law school has been
considered in a number of jurisdictions concurrently with the proceedings in
British Columbia.
[33]
The Law Society of Alberta advised its members by newsletter in December
2013 that it had delegated to the Federation of Law Societies of Canada the
authority to approve Canadian common law degrees and that the Federation had
granted preliminary approval to the proposed TWU law program.
[34]
At a meeting in February 2014 the Benchers of the Law Society of
Saskatchewan, in response to the Federation’s preliminary approval of the TWU
law school, considered an amendment to their rules which delegate approval of
common law programs to the Federation. The proposed amendment would have
permitted the Benchers to adopt a resolution declaring the law school was not
or had ceased to be an approved faculty of law. That proposed resolution was
defeated.
[35]
At their April 10 and April 24, 2014 convocations, the Benchers of the
Law Society of Upper Canada voted against the accreditation of the proposed TWU
law school.
[36]
On April 25, 2014 the Nova Scotia Barristers’ Society adopted the
following motion:
Council accepts the Report of the Federation Approval
Committee that, subject to the concerns and comments as noted, the TWU program
will meet the national requirement;
Council resolves that the Community Covenant is discriminatory
and therefore Council does not approve the proposed law school at Trinity
Western unless TWU either:
i) exempts
law students from signing the Community Covenant; or
ii) amends
the Community Covenant for law students in a way that ceases to discriminate.
Council directs the Executive
Director to consider any regulatory amendments that may be required to give
effect to this resolution and to bring them to Council for consideration at a
future meeting.
[37]
In May 2014 the Benchers of the Law Society of Manitoba decided not to
engage in a local approval process and to continue to delegate to the
Federation the task of approving Canadian common law programs.
[38]
In June 2014 the Benchers of the Law Society of Newfoundland and
Labrador resolved to place in abeyance the question whether graduates of the
TWU law school would be accepted for admission to that law society.
[39]
In the spring of 2014 the Yukon Law Society accepted the Federation’s
decision regarding preliminary approval of the TWU law program.
[40]
In June 2014 the Council of the New Brunswick Law Society voted to
accredit TWU’s proposed law school program.
8. Judicial Review Elsewhere
[41]
The decisions taken by the Nova Scotia Barristers’ Society and the Law
Society of Upper Canada have been challenged.
8.1 Nova Scotia
[42]
In Trinity Western University v. Nova Scotia Barristers’ Society,
2015 NSSC 25, Campbell J. of the Supreme Court of Nova Scotia held:
181 The NSBS did not act
reasonably in interpreting the Legal Profession
Act to grant it the statutory authority to
refuse to accept a law degree from TWU unless TWU changed it[s]
Community Covenant. It had no authority to pass the [impugned] resolution or
the regulation.
and:
270 The NSBS resolution and
regulation infringe on the freedom of religion of TWU and its students in a way
that cannot be justified.
[43]
On July 26, 2016 the Nova Scotia Court of Appeal, for reasons indexed at
2016 NSCA 59, dismissed the appeal of the Barristers’ Society without
commenting on Charter issues. The Court held the Barristers’ Society did
not have the statutory authority to enact a regulation permitting the Society
to refuse to recognize law degrees granted by universities with discriminatory
admission or enrollment policies, nor the authority to adopt a resolution
disapproving the TWU program:
[38] … [T]he Amended
Regulation is ultra vires the Legal Profession
Act. So the Amended Regulation,
and the Resolution that depends on it, are invalid. That disposes of the
matter. This Court will not comment on either (1) Trinity Western’s claimed
infringement of s. 2(a) of the Charter or (2) whether such an infringement, if it exists,
would be either justified under s. 1 and R. v. Oakes, 1986 CanLII 46
(SCC), [1986] 1 S.C.R. 103, or
proportionate under Doré v. Barreau du Québec, 2012 SCC 12 (CanLII), [2012] 1 S.C.R. 395 and Loyola High School v.
Québec (Attorney General), 2015 SCC 12
(CanLII), [2015] 1 S.C.R 613.
[44]
The Council of the Barristers’ Society was held to have “determined”
that TWU “unlawfully discriminates” contrary to the Charter or Nova
Scotia Human Rights Act. The Court found that in doing so the Council
had employed a criterion “completely unrelated to the Council’s
regulation-making authority under the Legal Profession Act” (at para. 67).
8.2 Ontario
[45]
The decision of the Benchers of the Law Society of Upper Canada of April
24, 2014 was challenged on a judicial review heard by the Divisional Court of
the Superior Court of Justice of Ontario on June 1-4, 2015: Trinity Western
University v. The Law Society of Upper Canada, 2015 ONSC 4250. The
Divisional Court held the Law Society had the jurisdiction to make the
challenged decision:
[58] For
all of these reasons, therefore, we conclude that the principles that are set
out in s. 4.2, and that are to govern the respondent’s
exercise of its functions, duties and powers under the Law Society Act, are
not restricted simply to standards of competence. Rather, they engage the
respondent in a much broader spectrum of considerations with respect to the
public interest when they are exercising their functions, duties and powers,
including whether or not to accredit a law school.
It rejected TWU’s Charter
challenge:
[123] Simply put, in balancing the interests of the
applicants to freedom of religion, and of the respondent’s members and future
members to equal opportunity, in the course of the exercise of its statutory
authority, the respondent arrived at a reasonable conclusion. It is not the
only decision that could have been made, as the difference in the vote on the
question reflects. But the fact that people may disagree, even strongly
disagree, on the proper result, does not mean that the ultimate decision is
unreasonable. It also does not mean that, just because more Benchers favoured
one approach over the other, the result equates to the imposition of some form
of “majoritarian tyranny” on the minority, as the applicants contend.
[124] We conclude that the
respondent did engage in a proportionate balancing of the Charter rights
that were engaged by its decision and its decision cannot, therefore, be found
to be unreasonable. We reach that conclusion based on a review of the record
undertaken in accordance with the procedure set out in Newfoundland Nurses.
In so doing, we have considered the speeches given at Convocation by the
Benchers as a whole – not in isolation, one from the other. In determining
whether a proportionate balancing was undertaken, it is only fair, in our view,
to consider the interchange between the Benchers, not whether the individual
speeches of each Bencher reflect that balance. In that regard, it is important
to remember that the Benchers were speaking in reaction to what others had
said, including what TWU itself had said. They were not speaking in a vacuum.
[46]
On June 29, 2016 the Ontario Court of Appeal dismissed TWU’s appeal for
reasons indexed at 2016 ONCA 518. MacPherson J.A., for the Court, held the Divisional Court had been correct
in applying a reasonableness standard of review to the Law Society’s decision.
The Court noted at para. 68 that the Benchers of the Law Society
constitute a tribunal “entitled, indeed required, to take account of, and try
to act consistently with, Charter values as
they make decisions within their mandate”. At para. 69, the Court held: “[The
Law Society’s] decision not to accredit TWU fell squarely within its statutory
mandate to act in the public interest.”
[47]
In relation to the balancing exercise, the Court held at para. 129
that although the Benchers’ accreditation decision would adversely impact TWU,
it was “[c]learly” reasonable “within the parameters set by Dunsmuir, Ryan
and Doré”. The Court gave four reasons for that conclusion at paras. 130-141:
(i) the
Law Society, together with law schools, is a gatekeeper to entry into the legal
profession with an obligation to ensure equality of admissions into the
profession;
(ii) in
balancing the rights at issue, the Law Society could attach weight to its
obligations under applicable human rights legislation;
(iii) TWU
was considered by the Court to be seeking access to a public benefit — the
accreditation of its law school — and the Law Society, in determining whether
to confer that public benefit, must consider whether doing so would meet its
statutory mandate to act in the public interest; and
(iv) the
Law Society’s balancing in its accreditation decision was faithful to
international human rights law, and especially international treaties and other
documents that bind Canada.
9. The Judgment of the Court Below
[48]
The application for judicial review in this case came on for hearing
before the Chief Justice of the Supreme Court of British Columbia on August 24-26,
2015. For reasons indexed at 2015 BCSC 2326 the petition for judicial review
was successful and the decision not to approve TWU’s law school was set aside.
[49]
The Chief Justice found that the procedures followed by the Law Society
in reaching its decision were improper. In particular, he found that the
Benchers had unlawfully delegated their decision-making powers to the members,
and had fettered their discretion by agreeing to be bound by the results of the
referendum. He also found that it was incumbent on the Benchers to engage in a
process of balancing the statutory objectives of the Legal Profession Act against
Charter values, and that they failed to do so. For those reasons, he
quashed the decision of the Law Society. He concluded it was unnecessary “to
resolve the issue of the collision of the relevant Charter rights” (at para. 153).
[50]
Although it does not appear to have been the basis for his decision, the
chambers judge was also of the view that TWU had not been given a fair
opportunity to present its case during the referendum period, which he
characterized as a denial of procedural fairness.
III. ISSUES ON APPEAL
[51]
On appeal the parties raise four issues:
1. Did
the Law Society have statutory authority to refuse to approve TWU’s law school
on the basis of an admissions policy?
2. Did
the Benchers unlawfully sub-delegate or fetter their decision-making authority?
3. Was
TWU denied procedural fairness?
4. Does
the Law Society’s decision reasonably balance the statutory objectives of the Legal
Profession Act against the religious freedom rights of TWU?
IV. ANALYSIS
1. Did the Law Society have statutory authority to refuse to approve TWU’s law school on the basis of an admissions policy?
[52]
The first issue the chambers judge considered was whether the Law
Society, in deciding whether to approve a law faculty, was limited to
considering “academic qualifications”. TWU argued that the Law Society’s
jurisdiction was limited to determining whether the legal instruction that TWU
proposed to provide was capable of producing graduates ready to become
competent lawyers.
[53]
The judge rejected that contention, holding that:
[108] … [t]he LSBC has a broad statutory authority that includes the
object and duty to preserve and protect the rights and freedoms of all persons.
... [A] decision to refuse to approve a proposed faculty of law on the basis of
an admissions policy is directly related to the statutory mandate of the LSBC and its
duties and obligations under the [Legal Profession Act].
[54]
The Legal Profession Act sets out the object and duty of the Law
Society of British Columbia as follows:
3 It is the object and duty of the society to uphold
and protect the public interest in the administration of justice by
(a) preserving and protecting the
rights and freedoms of all persons,
(b) ensuring the independence,
integrity, honour and competence of lawyers,
(c) establishing standards and
programs for the education, professional responsibility and competence of
lawyers and of applicants for call and admission,
(d) regulating the practice of law,
and
(e) supporting and assisting lawyers, articled students and
lawyers of other jurisdictions who are permitted to practise law in British
Columbia in fulfilling their duties in the practice of law.
[55]
The power of the Benchers to establish the requirements for admission to
the profession is set out in s. 21(1)(b):
21(1) The benchers may make rules to do any of the following:
…
(b) establish requirements,
including academic requirements, and procedures for call to the Bar of British
Columbia and admission as a solicitor of the Supreme Court;
…
[56]
TWU concentrates on the phrase “academic requirements” in s. 21(1)(b)
of the Act. As it did before the chambers judge, it argues that matters other
than the adequacy of the academic program at a law faculty cannot be considered
by the Benchers in deciding whether or not to approve it.
[57]
We are of the view that the chambers judge made no error in finding that
the Law Society’s decision to approve or deny approval to a law faculty could
be based on factors beyond the academic education that its graduates would
receive.
[58]
The Law Society’s objectives, as set out in s. 3 of the Act, are
very broad. While “ensuring the competence of lawyers” is an objective, there
are many others, including “preserving and protecting the rights and freedoms
of all persons”. Nothing in s. 21(1)(b) prevents the Benchers from
considering the general objectives of the Law Society in determining the
requirements for admission to the profession.
[59]
The chambers judge concluded his analysis of this issue by finding that
the Law Society correctly interpreted its jurisdiction. We agree. In our view,
the Benchers interpreted the Act in a reasonable manner (and, indeed, in a
manner that would pass the standard of correctness) when they came to the view
that a decision not to approve a law faculty could be made on bases other than
just the adequacy of the faculty’s academic program.
2. Did the Benchers unlawfully sub-delegate or fetter their decision-making authority?
[60]
The chambers judge found that, in binding themselves to the results of
the referendum, the Benchers unlawfully sub-delegated their powers to the
membership of the Law Society and fettered their own discretion.
[61]
The principles underlying the rule against sub-delegation and the rule
against fettering of discretion overlap to a considerable degree, but
sub-delegation and fettering are distinct concepts, and it is not helpful to
blur them together.
2.1 Sub-Delegation
[62]
The rule against sub-delegation is easily stated: where an enactment
delegates rule-making or decision-making authority to a particular person, that
person is entitled to exercise the power directly, but is generally not
entitled to delegate its exercise to another. The maxim that a delegate is not
entitled to re-delegate is a basic principle of administrative law. While there
are exceptions (see the classic article by John Willis, “Delegatus non
potest delegare” (1943) 21 Can. Bar Rev. 257), sub-delegation is generally
permitted only where a statute authorizes it expressly or by necessary
implication (Donald Brown and John Evans, Judicial Review of Administrative
Action in Canada (Toronto: Carswell, 2013) (loose-leaf) §§ 13-15 and 13-16).
[63]
Section 21(1)(b) of the Legal Profession Act clearly delegates to
the Benchers the power to establish requirements for admission to the
profession. They have exercised that rule-making power, enacting former Rule
2-27(4.1) and current Rule 2-54(3). Those rules specifically provide that a law
faculty that has been approved by the Federation is an approved law faculty for
the purpose of admission to the Law Society of British Columbia unless the
Benchers pass a resolution to the contrary. Nothing in the Act or Rules
suggests that the Benchers are entitled to sub-delegate the power to pass such
a resolution.
[64]
In the case before us, however, the resolution declaring TWU not to be
an approved law faculty was a resolution passed by the Benchers. While
the Benchers considered themselves bound to pass such a resolution as a result
of the referendum vote, the actual exercise of the statutory power was
undertaken by them. In the result, this is not a case of sub-delegation. The
statutory power was exercised directly by the body empowered to exercise it.
2.2 Fettering
[65]
The issue, then, is not whether the Law Society’s resolution was made by
the body with authority to make it, but whether that body properly exercised
its discretion. It is evident that, after the referendum results were known,
the Benchers did not consider themselves free to exercise their discretion in
an unrestricted manner. Rather, they considered the referendum binding on them.
[66]
It is not necessary to engage in any detailed analysis of the concept of
fettering of discretion in these circumstances. It is readily apparent that the
Benchers considered the referendum to have eliminated their discretion
completely. The question here is not whether their discretion was fettered — it clearly was — but rather whether that
fettering was authorized by law. That question can be answered by determining
whether the Benchers had statutory authority to conduct a binding referendum.
(a) The Power to Hold a Binding Referendum
[67]
The Legal Profession Act includes a provision that allows the
members of the Law Society to make resolutions that are binding on the Benchers
in limited circumstances. The process is a complex one, starting with a
resolution at a general meeting. The provision is as follows:
13 (1) A resolution of a general
meeting of the society is not binding on the benchers except as provided in
this section.
(2) A referendum of all members must be conducted on a
resolution if
(a) it has not been substantially
implemented by the benchers within 12 months following the general meeting at
which it was adopted, and
(b) the executive director receives
a petition signed by at least 5% of members in good standing of the society
requesting a referendum on the resolution.
(3) Subject to subsection (4), the resolution is binding on
the benchers if at least
(a) 1/3 of all members in good
standing of the society vote in the referendum, and
(b) 2/3 of those voting vote in
favour of the resolution.
(4) The benchers must not
implement a resolution if to do so would constitute a breach of their statutory
duties.
[68]
Where the procedures set out in s. 13 have been followed, and the
statutory requirements have been met, the members can adopt resolutions that
fetter the discretion of the Benchers. There is, in principle, no reason that
the s. 13 procedure could not be used, in appropriate circumstances, to
require the Benchers to exercise their rule-making functions in a particular
way.
[69]
The October 2014 referendum was held without the full requirements of
s. 13 having been met. A resolution was passed at the June 10, 2014
general meeting directing the Benchers to pass a resolution declaring TWU not
to be an approved law faculty. Pursuant to s. 13(1) of the Legal Profession
Act, that resolution was not binding on the Benchers.
[70]
At their September 26, 2014 meeting, the Benchers considered their
options and decided to hold a referendum, the results of which would be binding
upon them if the results met the standards set out in s. 13(3) of the Legal
Profession Act. The Benchers also purported to meet the requirements of
s. 13(4) of the Act by making a determination that “implementation
of the Resolution does not constitute a breach of their statutory duties,
regardless of the results of the Referendum.”
[71]
It is not clear, on the face of the statute, that the Benchers had the
power to circumvent the procedures set out in s. 13(2) of the Act
and call a referendum without requiring a petition or a 12-month waiting
period.
[72]
The Law Society relies on former Rule 1-37 (now Rule 1-41) as authority
for the Benchers to call a referendum:
1-37 (1) The Benchers may direct the Executive
Director to conduct a referendum ballot of all members of the Society or of all
members in one or more districts.
(2) The Rules respecting the
election of Benchers apply, with the necessary changes and so far as they are
applicable, to a referendum under this Rule, except that the voting paper
envelopes need not be separated by districts.
[73]
The Benchers say it was open to them to call the referendum under Rule
1-37, and that they did not have to await action by the members under s. 13(2)
of the Legal Profession Act. TWU, on the other hand, sees s. 13 of
the Legal Profession Act as a complete code governing the making of
binding resolutions by the members of the Law Society.
[74]
We have not heard argument on the question of whether the Law Society
had jurisdiction to enact Rule 1-37; nor have the parties made full submissions
on the scope of the rule. It is not apparent that any provision, apart from
s. 13 of the Legal Profession Act, gives the Law Society the
ability to exercise its powers by referendum. Our tentative view, then, is that
Rule 1-37, at least insofar as it deals with resolutions binding on the
Benchers, is ancillary to s. 13 of the statute, and not a stand-alone
procedure. It cannot, itself, obviate the requirements of s. 13(2).
[75]
It might be argued, however, that in setting out circumstances in which
a referendum must be held, s. 13(2) does not prevent the Benchers
from holding referendums in other situations. To some degree, practical
considerations favour an interpretation of s. 13 that allows the Benchers
to hold referendums without insisting on the filing of petitions or the lapse
of 12 months. Those statutory requirements are in place to ensure that
referendums will not be held where only a small number of members feel strongly
about an issue, or where the Benchers simply need time to study an issue before
dealing with it. Where the Benchers are convinced that the requirements of
s. 13(2) will inevitably be met in the future, and where they favour an
abbreviated process, there does not appear to be any rationale for insisting
that the referendum be delayed until the technical statutory conditions are
fulfilled.
[76]
We note, as well, that the Benchers are entitled to a margin of
appreciation in interpreting their home statute. As long as their
interpretation is not unreasonable, it will be respected by the courts.
[77]
As we are of the view that the Benchers’ decision to adopt the results
of the referendum was improper for other reasons, we need not come to any final
conclusion on whether the requirements set out in s. 13(2) are conditions
precedent to the holding of a binding referendum. For the purposes of this
case, we are prepared to assume, without deciding, that the Benchers had the authority
to call a binding referendum to consider the resolution passed at the June 10,
2014 meeting despite the absence of a petition, and despite the fact that 12
months had not passed from the date of the meeting.
(b) Consistency with Statutory Duties
[78]
We are not, however, convinced that the Benchers acted properly in
passing a resolution to the effect that, regardless of the results of the
referendum, following those results would be consistent with their statutory
duties.
[79]
The Benchers were cognizant of the fact that Charter values were
implicated in the decision as to whether TWU should be an approved law faculty.
They had, in the course of their own debates, become fully aware that the
decision required them to consider TWU’s concerns for religious freedom, as
well as opponents’ concerns for equality on the basis of sexual orientation.
[80]
Where Charter values are implicated in an administrative
decision, and the decision might infringe a person’s Charter rights, the
administrative decision-maker is required to balance, or weigh, the potential Charter
infringement against the objectives of the administrative regime. In Doré v.
Barreau du Québec, 2012 SCC 12, the Supreme Court of Canada held that where
an administrative tribunal undertakes such a balancing, it is entitled to
deference.
[81]
The rationale for such deference is that the tribunal will have a special
appreciation for the statutory regime under which it operates, and a nuanced
understanding of the facts of an individual case. In Doré, Abella J.,
for the Court, said:
[47] An administrative decision-maker exercising a
discretionary power under his or her home statute, has, by virtue of expertise
and specialization, particular familiarity with the competing considerations at
play in weighing Charter values. As the Court explained in Douglas/Kwantlen
Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, adopting the
observations of Prof. Danielle Pinard:
[translation] … administrative
tribunals have the skills, expertise and knowledge in a particular area which
can with advantage be used to ensure the primacy of the Constitution. Their
privileged situation as regards the appreciation of the relevant facts enables
them to develop a functional approach to rights and freedoms as well as to
general constitutional precepts.
(p. 605, citing “Le pouvoir des tribunaux
administratifs québécois de refuser de donner effet à des textes qu’ils jugent
inconstitutionnels” (1987-88), McGill L.J. 170, at pp. 173-74.)
[82]
We would observe, however, that many tribunals have limited contact with
the Charter and may have considerable difficulty interpreting it. There
is also a real possibility that a tribunal’s preoccupation with its own
statutory regime will lead it to value the statutory objectives of that regime
too highly against Charter values. As well, it is important to recognize
that administrative tribunals do not enjoy the same independence that judges
do. An elected tribunal or a statutory decision-maker with a renewable term of appointment
may be vulnerable to public or governmental pressure, and may find it difficult
to give the Charter rights of unpopular persons or groups sufficient
weight when balancing them against statutory objectives.
[83]
While Doré requires a court to grant tribunals a “margin of
appreciation” in determining whether they have properly balanced matters, the
tribunal’s decision will, in all cases, have to fall within the bounds of
reasonableness. Where a tribunal has failed to appreciate the significance of a
Charter value in the balancing, its decision will be found to be
unreasonable — see, for example, Loyola High School v.
Quebec (Attorney General), 2015 SCC 12.
[84]
A very significant aspect of Doré is its discussion of the
procedure to be adopted by a tribunal in balancing statutory objectives against
Charter values:
[55] How then does an administrative decision-maker apply
Charter values in the exercise of statutory discretion? He or she
balances the Charter values with the statutory objectives. In effecting
this balancing, the decision-maker should first consider the statutory
objectives. In Lake, for instance, the importance of Canada’s
international obligations, its relationships with foreign governments, and the
investigation, prosecution and suppression of international crime justified the
prima facie infringement of mobility rights under s. 6(1) (para. 27).
In Pinet, the twin goals of public safety and fair treatment grounded
the assessment of whether an infringement of an individual’s liberty interest
was justified (para. 19).
[56] Then the decision-maker
should ask how the Charter value at issue will best be protected in view
of the statutory objectives. This is at the core of the proportionality
exercise, and requires the decision-maker to balance the severity of the
interference of the Charter protection with the statutory objectives. This
is where the role of judicial review for reasonableness aligns with the one
applied in the Oakes context. As this Court recognized in RJR-MacDonald
Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 160, “courts
must accord some leeway to the legislator” in the Charter balancing
exercise, and the proportionality test will be satisfied if the measure “falls
within a range of reasonable alternatives”. The same is true in the context of
a review of an administrative decision for reasonableness, where
decision-makers are entitled to a measure of deference so long as the decision,
in the words of Dunsmuir, “falls within a range of possible, acceptable
outcomes” (para. 47).
[85]
In making their October 31, 2014 declaration, the Benchers did not
engage in any exploration of how the Charter values at issue in this
case could best be protected in view of the objectives of the Legal
Profession Act. They made no decision at all, instead deferring to the vote
of the majority in the referendum.
[86]
Counsel for the Law Society contends that the Benchers decided that
either of the possible results of the referendum would fall within the range of
reasonable outcomes of the required balancing exercise, and that their decision
should be upheld. In our view, that contention confuses the role to be played
by an administrative tribunal and the role of the courts.
[87]
Administrative tribunals are called upon to make decisions under
particular statutory regimes. They are considered to have expertise and a
privileged position in making such decisions. As such, where a tribunal has
made what it considers to be the right decision, the courts will defer to that
decision if it is not unreasonable. The reasonableness standard on judicial
review does not alter the tribunal’s role, which is to make the right decision.
Rather, it is a recognition that, within a particular statutory regime, the
tribunal will generally be in a better position to assess whether a decision is
“right” than a court will be.
[88]
A tribunal’s function, in other words, is always to make the decision
that it considers correct. The “reasonableness” standard is not one to be
applied by the tribunal, but by a court on judicial review.
[89]
In the case before us, it was up to the Benchers to weigh the statutory
objectives of the Legal Profession Act against Charter values,
and to arrive at the decision that, in their view, best protected Charter
values without sacrificing important statutory objectives. They could not
fulfill their statutory duties without undertaking this balancing process.
[90]
In deciding that either result on the referendum would meet the
reasonableness standard, and therefore be acceptable, the Benchers were
conflating the role of the courts with their own role.
[91]
As the chambers judge found, the Benchers failed to fulfill their
function when they chose not to come to any conclusion as to how statutory
objectives should be weighed against Charter values. In reaching the
decision by binding referendum, the Benchers fettered their discretion in a
manner inconsistent with their statutory duties. As a result, this Court is not
in a position to defer to their decision to declare the TWU law school not to
be approved.
3. Was TWU denied procedural fairness?
[92]
The chambers judge found that TWU had not been accorded procedural
fairness in this case. That determination appears to have stemmed, in part,
from a misapprehension of the evidence. The judge understood the evidence to be
that the Law Society delivered material to its members that was skewed against
TWU’s position. Counsel agree that that did not occur.
[93]
The finding also appears to have been based on the judge’s understanding
that fettering is an issue going to procedural fairness. In our view, fettering
issues are better described as engaging substantive administrative review rather
than review for procedural fairness. Issues of procedural fairness are
concerned with the fairness of the hearing, not with the factors that the
decision-maker takes into account in arriving at a disposition.
[94]
In the context of a referendum, where a very public debate was waged by
the protagonists for each side, the neutral stance taken by the Benchers was
consistent with procedural fairness. TWU was clearly aware of the issues in the
referendum, and of the case that it had to meet. We would not endorse the
chambers judge’s finding that TWU was denied procedural fairness in the context
of the referendum.
[95]
In summary, we reach the following conclusions on the administrative law
issues:
1. The
Law Society has jurisdiction to consider factors other than the adequacy of a
faculty’s academic program in deciding whether to deny the faculty approval.
2. This
is not a case of improper sub-delegation of decision-making authority. The
resolution in issue here was adopted by the Benchers, who are the body
statutorily authorized to make the decision.
3. The
Benchers fettered their discretion by declaring themselves bound to follow the
results of the referendum. However, if authorized by the statute, such
fettering would not be objectionable.
4. The
Legal Profession Act provides for binding referendums. While some of the
conditions that must exist in order for members to force a referendum were not
present in this case, we are prepared to assume, without deciding, that it was
open to the Benchers to hold a binding referendum.
5. The
Benchers were required to satisfy themselves that adopting the results of the
referendum was consistent with their duty to balance the Law Society’s statutory
objectives against Charter values. They failed to fulfill this function,
and their decision is not, therefore, entitled to deference.
6. There
was no failure by the Law Society to accord procedural fairness to TWU.
[96]
The chambers judge concluded that the Benchers’ resolution declaring TWU
not to be an approved law faculty should be quashed, and ordered the result of
the April 11, 2014 vote restored. We have a technical concern with this remedy.
The resolution before the Benchers on April 11, 2014 not to approve TWU’s
faculty of law failed to pass. Upon that failure it became a legislative “nothing”.
There is thus nothing to “restore” as the chambers judge ordered. Rather, what
is left is the approval of TWU’s faculty of law by the Federation, which is
legally effective in the absence of a resolution to the contrary.
[97]
In any event, in our view the judge’s decision to quash the Benchers’
resolution cannot be reached on the administrative law issues alone. Although
the decision of the Benchers is not entitled to deference, it can be upheld if
the Court is able to find that it represented the only reasonable balancing of
statutory objectives with Charter values. Accordingly, it is necessary
for the Court to consider the substantive Charter arguments presented by
the parties and intervenors. In addition, the parties asked the Court to
address the Charter issues in order to avoid the need for further
litigation. We turn now to those issues.
4. Does the Law Society’s decision reasonably balance the statutory objectives of the Legal Profession Act against the religious freedom rights of TWU?
4.1 Charter Rights Engaged
[98]
The relevant provisions of the Charter are as follows:
1. The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society.
2. Everyone has the following fundamental freedoms:
(a) freedom of
conscience and religion;
(b) freedom
of thought, belief, opinion and expression, including freedom of the press and
other media of communication;
(c) freedom of
peaceful assembly; and
(d) freedom of
association.
* * *
15. (1) Every individual is
equal before and under the law and has the right to the equal protection and
equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex,
age or mental or physical disability.
[99]
The first issue is whether freedom of religion is implicated. The
Supreme Court of Canada has grappled with the nature of freedom of religion and
conscience (which are usually considered in tandem, given the overlap between
them), both alone and in the context of a free and democratic society. In R.
v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, one of the earliest judgments
dealing with the topic, Dickson J. (as he then was) for the majority described
the historical evolution of this right in the religious struggles of
post-Reformation Europe. (See also chapter one of Margaret H. Ogilvie, Religious
Institutions and the Law in Canada (3d ed., 2010)). Eventually, these
struggles led to the perception, during the Commonwealth period, that “belief
itself was not amenable to compulsion” (Big M Drug Mart Ltd. at 345). Dickson
J. continued at 346-347:
… an emphasis on
individual conscience and individual judgment also lies at the heart of our
democratic political tradition. The ability of each citizen to make free and
informed decisions is the absolute prerequisite for the legitimacy,
acceptability, and efficacy of our system of self‑government. It is because of the
centrality of the rights associated with freedom of individual conscience both
to basic beliefs about human worth and dignity and to a free and democratic
political system that American jurisprudence has emphasized the primacy or “firstness”
of the First Amendment. It is this same centrality that in my view underlies
their designation in the Canadian Charter of Rights and Freedoms as “fundamental”.
They are the sine qua non of the political tradition underlying the Charter.
Viewed in this context, the purpose of freedom of
conscience and religion becomes clear. The values that underlie our
political and philosophic traditions demand that every individual be free to
hold and to manifest whatever beliefs and opinions his or her conscience
dictates, provided inter alia only that such manifestations do not
injure his or her neighbours or their parallel rights to hold and manifest
beliefs and opinions of their own. Religious belief and practice are historically
prototypical and, in many ways, paradigmatic of conscientiously-held beliefs
and manifestations and are therefore protected by the Charter. Equally
protected, and for the same reasons, are expressions and manifestations of
religious non-belief and refusals to participate in religious practice. It may
perhaps be that freedom of conscience and religion extends beyond these
principles to prohibit other sorts of governmental involvement in matters
having to do with religion. For the present case it is sufficient in my opinion
to say that whatever else freedom of conscience and religion may mean, it must
at the very least mean this: government may not coerce individuals to affirm a
specific religious belief or to manifest a specific religious practice for a
sectarian purpose. I leave to another case the degree, if any, to which the
government may, to achieve a vital interest or objective, engage in coercive
action which s. 2(a) might otherwise prohibit.
[Emphasis added.]
[100] Subsequent
cases have developed the themes that freedom of religion also includes freedom from
religion (see S.L. v. Commission scolaire des Chênes, 2012 SCC 7 at para. 32)
and that the government should remain neutral in religious matters, especially
as the multicultural nature of modern Canadian society evolves (see S.L.
at paras. 17-21, 32, and 54). We note parenthetically that there is one constitutional
exception to this principle: s. 29 of the Charter protects against
any derogation or abrogation of “privileges guaranteed by or under the
Constitution of Canada in respect of denominational, separate or dissentient
schools.” The Constitution, in s. 93 of the Constitution Act, 1867,
in turn prohibits any provincial legislature from “prejudicially affecting” any
right or privilege belonging by law to a denominational school at the time of Union.
Thus an exception is made by the Charter itself for the protection of the
benefits (e.g., public funding) enjoyed by such schools that were in existence
in 1867 (or in the case of British Columbia, 1871) notwithstanding other Charter
rights (e.g., equality) that could otherwise form the basis of legal challenge
(see generally Reference re Bill 30, An Act to amend the Education Act
(Ont.), [1987] 1 S.C.R. 1148; Ogilvie, supra at 120-131).
Section 93 was extended to British Columbia (see Order in Council Admitting
British Columbia into the Union, dated 16 May, 1871); but since this province
had no publicly-funded denominational schools in 1871, s. 29 has no
application in this case.
[101] The Supreme
Court has formulated a methodology to be followed in cases involving
allegations of infringement of freedom of religion or conscience. The first
step is for the plaintiff or complainant to “establish the sincerity of his or
her belief in a religious doctrine, practice or obligation”. The second step is
for the court to determine whether a significant infringement of the belief has
occurred as a result of governmental action: see S.L. at para. 49; Hutterian
Brethren Colony v. Alberta, 2009 SCC 37 at para. 32.
[102] There is
little doubt that freedom of religion and conscience of at least TWU’s faculty
and students was implicated by the Law Society’s decision not to approve its
Faculty of Law — indeed the Law
Society did not argue otherwise.
[103]
The evidence overwhelmingly supports the view that the Covenant is an
integral and important part of the religious beliefs and way of life advocated
by TWU and its community of evangelical Christians. According to Dr. Jeffrey
P. Greenman, a Professor of Theology at Regent College and an affiant on behalf
of TWU, the Covenant reflects the core teachings of evangelical Christian
theology; nothing in it is marginal to evangelical moral concerns:
It attempts to do nothing more
than organize the Bible’s directions about how to live as a Christian with
regard to many aspects of daily life as individuals and as members of a shared
community.
[104] The
evidence before the Law Society confirms that evangelicals comprise a distinct
religious subculture. According to Dr. Samuel H. Reimer, Professor of
Sociology at Crandall University in Moncton, New Brunswick, the evangelicals’
faith, like any moral code, is not limited to their private lives. They carry
their beliefs and moral values into the public sphere, including work,
education and politics. Codes of conduct are commonly established by
evangelical Christians as distinctive moral codes that “strengthen commitment
to the subculture, and thus strengthen the subculture”.
[105] Dr. Gerald
Longjohn Jr. swore an affidavit in these proceedings. He is the Vice-President
for Student Development at Cornerstone University in Michigan. His area of
expertise lies in the application of student conduct codes at North American
Christian universities. He deposed that codes of conduct serve to establish a
community that is conducive to moral and spiritual growth; such codes can
foster spiritual growth, encourage students toward a life of wisdom and foster
an atmosphere that is conducive to the integration of faith and learning. The
Covenant is “very similar in tone and content to other codes of conduct at
Christian colleges and universities”. The Covenant, in his view, is a
commitment of members of the community to encourage and support other members
of the community in their pursuit of their values and ideals.
[106] Intervenors
in support of TWU’s position in this litigation included the Roman Catholic
Archdiocese of Vancouver and allied groups, the Christian Legal Fellowship, the
Evangelical Fellowship of Canada, the Seventh-Day Adventist Church in Canada,
the Justice Centre for Constitutional Freedoms and the Canadian Council of
Christian Charities, among others. These intervenors voiced a common theme. They
asserted that a secular state supports pluralism and that a democratic society
requires that differing groups have space to hold and act on their beliefs. In
their view, freedom of religion requires the disciplined exercise of genuine
state neutrality to prevent the use of coercive state power in the enforcement
of majority beliefs or practices.
[107] It is
clear, then, that rights of religion and conscience are engaged in this case. These
freedoms belong at least to the faculty and students of TWU, and perhaps to TWU
itself: see Loyola High School v. Quebec (Attorney General), 2015 SCC 12
at para. 33 (per Abella J. for the majority) and at para. 100
(per McLachlin C.J.C. and Moldaver J. for the minority).
[108]
The conflicting Charter right implicated by the Law Society’s
decision is the equality right of LGBTQ persons under the law, guaranteed by
s. 15 of the Charter. As is well-known, sexual orientation has been
found to constitute an analogous ground under s. 15, such that the equal
benefit and protection of the law may not be denied on that basis. In Vriend
v. Alberta, [1998] 1 S.C.R. 493, the majority of the Supreme Court
described the effects of discrimination on the basis of sexual orientation in
the context of the appellant’s termination of his employment because of his
homosexuality. The majority wrote:
[101] The exclusion [in the
Individual’s Rights Protection Act, R.S.A. 1980, c. I‑2]
sends a message to all Albertans that it is permissible, and perhaps even
acceptable, to discriminate against individuals on the basis of their sexual
orientation. The effect of that message on gays and lesbians is one whose
significance cannot be underestimated. As a practical matter, it tells them
that they have no protection from discrimination on the basis of their sexual
orientation. Deprived of any legal redress they must accept and live in
constant fear of discrimination. These are burdens which are not imposed on
heterosexuals.
[102] Perhaps most important
is the psychological harm which may ensue from this state of affairs. Fear of
discrimination will logically lead to concealment of true identity and this
must be harmful to personal confidence and self‑esteem. Compounding that effect is the implicit
message conveyed by the exclusion, that gays and lesbians, unlike other
individuals, are not worthy of protection. This is clearly an example of a
distinction which demeans the individual and strengthens and perpetrates the
view that gays and lesbians are less worthy of protection as individuals in
Canada’s society. The potential harm to the dignity and perceived worth of gay
and lesbian individuals constitutes a particularly cruel form of
discrimination.
[103] Even if the
discrimination is experienced at the hands of private individuals, it is the
state that denies protection from that discrimination. Thus the adverse effects
are particularly invidious. This was recognized in the following statement from
Egan [Egan v. Canada, [1995] 2 S.C.R. 513] (at para. 161):
The law confers a significant
benefit by providing state recognition of the legitimacy of a particular status.
The denial of that recognition may have a serious detrimental effect upon the
sense of self‑worth and dignity of members of a group because it
stigmatizes them … . Such legislation would clearly infringe s. 15(1)
because its provisions would indicate that the excluded groups were inferior
and less deserving of benefits.
This reasoning applies a
fortiori in a case such as this where the denial of recognition involves
something as fundamental as the right to be free from discrimination.
[109] The Law
Society led evidence from various experts touching on the impact of the
Covenant on LGBTQ persons. Dr. Barry Adam is a Professor of Sociology,
Anthropology and Criminology at the University of Windsor. His work looks at
issues of subordination and empowerment and the social status of lesbian,
bisexual and gay people. He deposes:
a) When
gay, lesbian and bisexual people are identified with private sexual activity,
and subject to penalty for the expression of intimacy, a special range of
social limitations are thereby imposed on them (at para. 16). Exclusion
from public affirmation of relationship is a form of withholding access to the
full exercise of citizenship rights in the public sphere (at para. 17).
b) Lesbian,
bisexual and gay people still live in social and economic contexts
characterized by lack of family support, vulnerability to harassment, violence,
negative social attitudes, and diminished opportunities (at para. 20).
c) Based
on the extensive record of social science investigation, any implementation or
enforcement of a policy of exclusion reproduces the conditions that lead to
well demonstrated deleterious consequences for lesbian, gay and bisexual people
(at para. 25).
[110] Dr. Ellen
Faulkner is a Professor of Sociology and Criminology at the College of New Caledonia.
She has conducted research in the field of discrimination and the harm caused
by it. She considered the potential adverse effects on gay and lesbian students
if they were to sign the Covenant. She fears that this would push gay and
lesbian people “back into the closet” (at para. 11); because of limited law
school spaces they might be “living a lie in order to obtain a degree” (at para. 12).
Signing the Covenant would require self-censorship by gay and lesbian people — hiding
relationships even though they are legally sanctioned in Canada (at para. 29);
it would require gays and lesbians to isolate themselves (at para. 30); and
it would be harmful because it potentially “re-pathologizes” homosexual identity
and denies recognition of the harm of homophobia (at para. 38).
[111] Other
experts reached similar conclusions. In their opinion, TWU’s admissions policy
and the Covenant perpetuate and exacerbate existing stigmatization and
marginalization of LGBTQ persons.
[112] Unlike the
College of Teachers in Trinity Western University v. British Columbia
College of Teachers, 2001 SCC 31 [TWU v. BCCT], to which we will
return, the Law Society did not contend that the potential “downstream” effect
of the learning environment might foster intolerant attitudes on the part of
TWU graduates once called to the Bar.
[113] The
intervenors in support of the Law Society’s position included the Canadian
Secular Alliance, the British Columbia Humanist Association, the LGBTQ
Coalition, West Coast Women’s Legal Education and Action Fund and The Advocates’
Society, among others. These intervenors raised many of the same concerns
raised by the Law Society’s experts. The Coalition submitted that religious
freedom cannot be used as a basis to exclude LGBTQ persons from access to a law
program when that program requires the approval of a public body; s. 15
guarantees LGBTQ persons the right to equal access to the 60 new law school
spaces to be created by TWU and equal access to the profession of law generally.
As well, it is said that the dignity and self-worth of LGBTQ persons would be
affronted and that the Law Society would be perceived as endorsing the Covenant
if it were to approve the proposed law school.
[114] It bears
emphasizing at the outset that under the Charter, “[n]o right is
absolute.” Each must be measured in relation to other rights and with a view to
the underlying context in which the apparent conflict arises (S.L. at para. 25).
Where freedom of religion is concerned, this fact distinguishes the Charter
from the First Amendment to the U.S. Constitution, which expresses freedom of
religion as an absolute right. As Professor Ogilvie observes, s. 15
of the Charter “reduces religion to one of many categories vying for ‘equality’”;
and s. 1 gives courts the right to qualify freedom of religion by “such
reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society” (at 135). Thus, Ogilvie writes, “[e]ffectively, the Charter
reduces and relativizes religious freedom and gives courts the power to select
and balance other countervailing claims” (at 135).
[115] Unlike
many Charter cases, this case does not involve a direct contest
between Charter rights. It does not involve, for example, an LGBTQ
person who has been denied admission by TWU on the basis of his or her refusal
to sign the Covenant. The law is clear that as a private institution, it would
be open to TWU to accept only students who subscribe to its adopted religious
views — a right also ensconced in this province’s Human Rights Code at
s. 41. Nor does this case involve a decision by the Law Society directly
to deny evangelical Christians the right to practise law. Such a denial would
obviously infringe at least s. 2 of the Charter and would have to
be justified under s. 1.
[116] Instead,
this case, like TWU v. BCCT, is one in which a statutory body has made a
decision under its home statute that effectively bars from the practice of law evangelical
Christians who choose to attend the TWU law school — in
practical terms, prohibiting such a law school from opening (see para. 168
below). The focus of this appeal is therefore the decision of the Law Society
as an administrative tribunal that is bound to uphold and protect the public
interest in the administration of justice, as more particularly delineated by
s. 3 of the Legal Profession Act.
4.2 The Decision-Maker’s Exercise of Authority When Charter Rights and Values Are Engaged
[117] As we have
earlier noted, how an administrative decision-maker is to exercise its
delegated authority to decide an issue involving Charter rights and
freedoms was addressed by the Supreme Court of Canada in two decisions that we
will now discuss at some length — Doré v. Barreau du Québec, 2012 SCC 12; and Loyola High
School v. Quebec (Attorney General), 2015 SCC 12.
(a) Doré
[118] In Doré, the disciplinary council of the Quebec bar was
considering a conduct complaint involving a lawyer who wrote a private letter
to a judge in which he disparaged the judge. The lawyer’s freedom of expression
was in clear tension with the disciplinary council’s mandate. The council
reprimanded the lawyer, who sought judicial review.
[119]
Justice Abella wrote the judgment for the Court. She addressed the “issue
of how to protect Charter guarantees and the values they reflect in the
context of adjudicated administrative decisions” (at para. 3). In particular,
she considered whether the presence of a Charter issue requires the
replacement of the reasonableness administrative law framework with the test
set out in Oakes (R. v. Oakes, [1986] 1 S.C.R. 103), “the test
traditionally used to determine whether the state has justified a law’s
violation of the Charter as a ‘reasonable limit’ under s. 1” (at para. 3).
At para. 6, she stated:
In assessing whether a law
violates the Charter, we are balancing the government’s pressing and
substantial objectives against the extent to which they interfere with the Charter
right at issue. If the law interferes with the right no more than is reasonably
necessary to achieve the objectives, it will be found to be proportionate, and,
therefore, a reasonable limit under s. 1. In assessing whether an
adjudicated decision violates the Charter, however, we are engaged in
balancing somewhat different but related considerations, namely, has the
decision-maker disproportionately, and therefore unreasonably, limited a Charter
right. In both cases, we are looking for whether there is an appropriate
balance between rights and objectives, and the purpose of both exercises is to
ensure that the rights at issue are not unreasonably limited. [Emphasis added.]
[120] The key
word is “proportionality”; the reviewing court must ensure that the
discretionary administrative decision “interferes with the relevant Charter
guarantee no more than is necessary given the statutory objectives” (at para. 7).
If the decision disproportionately impairs the guarantee, it is unreasonable.
If, on the other hand, it reflects a proper balance of the mandate with Charter
protection, it is a reasonable one.
[121]
We repeat here Justice Abella’s description of the
procedure to be followed by the administrative decision-maker (at paras. 55-58):
How then does an administrative decision-maker apply Charter
values in the exercise of statutory discretion? He or she balances the Charter
values with the statutory objectives. In effecting this balancing, the
decision-maker should first consider the statutory objectives. In Lake,
for instance, the importance of Canada’s international obligations, its
relationships with foreign governments, and the investigation, prosecution and
suppression of international crime justified the prima facie infringement
of mobility rights under s. 6(1) (para. 27). In Pinet, the
twin goals of public safety and fair treatment grounded the assessment of
whether an infringement of an individual’s liberty interest was justified (para. 19).
Then the decision-maker should ask how the Charter
value at issue will best be protected in view of the statutory objectives. This
is at the core of the proportionality exercise, and requires the decision-maker
to balance the severity of the interference of the Charter protection
with the statutory objectives. This is where the role of judicial review for
reasonableness aligns with the one applied in the Oakes context. As
this Court recognized in RJR-MacDonald Inc. v. Canada (Attorney General),
[1995] 3 S.C.R. 199, at para. 160, “courts must accord some leeway to the
legislator” in the Charter balancing exercise, and the proportionality
test will be satisfied if the measure “falls within a range of reasonable
alternatives”. The same is true in the context of a review of an administrative
decision for reasonableness, where decision-makers are entitled to a measure of
deference so long as the decision, in the words of Dunsmuir, “falls
within a range of possible, acceptable outcomes” (para. 47).
On judicial review, the question becomes whether, in
assessing the impact of the relevant Charter protection and given the
nature of the decision and the statutory and factual contexts, the decision
reflects a proportionate balancing of the Charter protections at play.
As LeBel J. noted in Multani, when a court is faced with reviewing an
administrative decision that implicates Charter rights, “[t]he issue
becomes one of proportionality” (para. 155), and calls for integrating the
spirit of s. 1 into judicial review. Though this judicial review is
conducted within the administrative framework, there is nonetheless conceptual
harmony between a reasonableness review and the Oakes framework, since
both contemplate giving a “margin of appreciation”, or deference, to
administrative and legislative bodies in balancing Charter values
against broader objectives.
If, in exercising its statutory discretion, the
decision-maker has properly balanced the relevant Charter value with the
statutory objectives, the decision will be found to be reasonable.
[Emphasis added.]
(b) Loyola High School
[122] This
brings us to the decision in Loyola High School. It is highly relevant
to the case before this Court because it involved a contest between the
religious freedom of a private Catholic high school and the statutory objectives
of Quebec’s Program on Ethics and Religious Culture (ERC).
[123] Briefly,
ERC was designed to teach about the beliefs and ethics of different world
religions from a neutral and objective perspective. Since Loyola High School initially
wanted to teach the program from a wholly Catholic perspective, it applied
under s. 22 of the regulation to provide an alternative but “equivalent”
program. This required the approval of the responsible minister. The Minister
decided not to grant the exemption. Loyola sought judicial review. Applying a
correctness standard, the motions judge concluded that the school’s right to
religious freedom was unjustifiably violated. The Quebec Court of Appeal,
applying a reasonableness standard to the review of the Minister’s balancing of
the Charter rights at stake, overturned the lower court’s decision.
[124]
On appeal to the Supreme Court of Canada, the appeal was allowed and the
matter was remitted back to the Minister for reconsideration. By the time the
case reached the Supreme Court, Loyola had altered its position (at para. 31):
Loyola had
previously asserted that the entire orientation of the ERC Program
represented an impairment of religious freedom on the basis that discussing any
religion through a neutral lens would be incompatible with Catholic beliefs.
Its revised position before us was that it did not object to teaching other world
religions objectively in the first component which focuses on “understanding
religious culture”. But it still wanted to be able to teach the ethics
of other religious traditions from the perspective of the Catholic religion
rather than in an objective and neutral way. Moreover, it continued to assert
the right to teach Catholic doctrine and ethics from a Catholic perspective.
Loyola took no position on the perspective from which it would seek to teach
the dialogue component, which would be integrated with the other two components
of its proposed alternative program. The position of the Minister before this
Court, however, remained the same as it had been in the prior proceedings,
namely, that in no aspect of the ERC Program would Loyola be permitted to teach
from a Catholic perspective. [Emphasis in original.]
[125]
Justice Abella wrote for herself and Justices LeBel, Cromwell and
Karakatsanis. Chief Justice McLachlin and Justice Moldaver wrote separately,
with Justice Rothstein concurring. The majority did not find it necessary to
decide whether Loyola itself, as a corporation, enjoyed s. 2(a) rights,
… since the
Minister is bound in any event to exercise her discretion in a way that
respects the values underlying the grant of her decision-making authority,
including the Charter-protected religious freedom of the members of the
Loyola community who seek to offer and wish to receive a Catholic education: Chamberlain
v. Surrey School District No. 36, [2002] 4 S.C.R. 710, at para. 71.
[At para. 34.]
[126]
The minority went further in defining the beneficiaries of the right to
religious freedom under s. 2(a) of the Charter to include Loyola
itself (at para. 91):
In our view, Loyola
may rely on the guarantee of freedom of religion found in s. 2(a)
of the Canadian Charter. The communal character of religion means that
protecting the religious freedom of individuals requires protecting the
religious freedom of religious organizations, including religious educational
bodies such as Loyola. Canadian and international jurisprudence supports
this conclusion.
[127]
Justice Abella proceeded to assess the Minister’s decision from the
perspective of proportionality. She discussed how that decision necessarily
engaged religious freedom and, at para. 58, repeated the words of Dickson J.
(as he then was) in Big M Drug Mart Ltd. at 336-37 (the emphasis is that
of Abella J.):
The essence of the concept of freedom of
religion is the right to entertain such religious beliefs as a person chooses,
the right to declare religious beliefs openly and without fear of hindrance or
reprisal, and the right to manifest religious belief by worship and practice or
by teaching and dissemination. But the concept means more than that.
Freedom can primarily be characterized by the
absence of coercion or constraint. … Coercion includes not only such blatant
forms of compulsion as direct commands to act or refrain from acting on pain of
sanction, coercion includes indirect forms of control which determine or limit
alternative courses of conduct available to others. Freedom in a broad sense
embraces both the absence of coercion and constraint, and the right to manifest
beliefs and practices. Freedom means that, subject to such limitations as
are necessary to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others, no one is to be forced to act in a
way contrary to his beliefs or his conscience.
What may appear
good and true to a majoritarian religious group, or to the state acting at
their behest, may not, for religious reasons, be imposed upon citizens who take
a contrary view. The Charter safeguards religious minorities from the
threat of “the tyranny of the majority”.
[128]
In Justice Abella’s view, the “collective aspects of
religious freedom — in this case, the collective manifestation and transmission
of Catholic beliefs through a private denominational school — were a critical
part of Loyola’s claim” (para. 61) and distinguished that claim from the
public school context of S.L. She concluded that the Minister’s decision
had a “serious impact” on religious freedom in the case of Loyola. Going
further the judge said (at para. 67):
Ultimately,
measures which undermine the character of lawful religious institutions and
disrupt the vitality of religious communities represent a profound interference
with religious freedom.
[129]
On the “core issue” of whether the Minister’s insistence
on a purely secular program of study to qualify for an exemption was a limit no
more than reasonably necessary to achieve the ERC Program’s goals, the majority
concluded that it was not. The Minister’s decision was based “on the flawed
determination that only a cultural and non-denominational approach could serve
as equivalent” (para. 149). It led to “a substantial infringement on the
religious freedom of Loyola” (para. 151). The minority went on to consider
the appropriate scope of an equivalent program and defined it. On remedy the
minority cited Canada (Attorney General) v. PHS Community Services Society,
2011 SCC 44 and concluded (at para. 165):
We find it neither
necessary nor just to send this matter back to the Minister for
reconsideration, further delaying the relief Loyola has sought for nearly seven
years. Based on the application judge’s findings of fact, and considering the
record and the submissions of the parties, we conclude that the only
constitutional response to Loyola’s application for an exemption would be to
grant it. Accordingly, we would order the Minister to grant an exemption to
Loyola, as contemplated under s. 22 of the regulation at issue, to offer
an equivalent course to the ERC Program in line with Loyola’s proposal and the
guidelines we have outlined. [Emphasis added.]
[130] It is
instructive to note that even in the case of a standard of review calibrated at
“reasonableness”, the range of “reasonable” outcomes can be exceedingly narrow
indeed, effectively amounting to one correct answer.
[131]
While the parallel between Loyola and the present case is not
exact, in that the state’s accommodation of religious freedom in Loyola did
not have a direct detrimental impact on the equality rights of others, the
requirement of minimal infringement and proportionality pertains. In addition,
the context of the decision made in Loyola is similar: “how to balance
robust protection for the values underlying religious freedom with the values
of a secular state” (at paras. 43-46):
Part of
secularism, however, is respect for religious differences. A secular state
does not — and cannot — interfere with the beliefs or practices of a religious
group unless they conflict with or harm overriding public interests. Nor can a
secular state support or prefer the practices of one group over those of
another: Richard Moon, “Freedom of Religion Under the Charter of Rights:
The Limits of State Neutrality” (2012), 45 U.B.C. L. Rev. 497, at
pp. 498-99. The pursuit of secular values means respecting the right to
hold and manifest different religious beliefs. A secular state respects
religious differences, it does not seek to extinguish them.
Through this form of neutrality, the state
affirms and recognizes the religious freedom of individuals and their
communities. As Prof. Moon noted:
Underlying the
[state] neutrality requirement, and the insulation of religious beliefs and
practices from political decision making, is a conception of religious belief
or commitment as deeply rooted, as an element of the individual’s identity,
rather than simply a choice or judgment she or he has made. Religious belief
lies at the core of the individual’s worldview. It orients the individual in
the world, shapes his or her perception of the social and natural orders, and
provides a moral framework for his or her actions. Moreover, religious belief
ties the individual to a community of believers and is often the central or defining
association in her or his life. The individual believer participates in a
shared system of practices and values that may, in some cases, be described as “a
way of life”. If religion is an aspect of the individual’s identity, then when
the state treats his or her religious practices or beliefs as less important or
less true than the practices of others, or when it marginalizes her or his
religious community in some way, it is not simply rejecting the individual’s
views and values, it is denying her or his equal worth. [Footnote omitted;
p. 507.]
Because it allows communities with different
values and practices to peacefully co-exist, a secular state also supports
pluralism. The European Court of Human Rights
recognized the relationship between religious freedom, secularism and pluralism
in Kokkinakis v. Greece, judgment of 25 May 1993, Series A No. 260-A,
a case about a Jehovah’s Witness who had been repeatedly arrested for violating
Greece’s ban on proselytism. Concluding that the claimant’s Article 9 rights to
religious freedom had been violated, the court wrote:
As enshrined in
Article 9, freedom of thought, conscience and religion is one of the
foundations of a “democratic society” within the meaning of the Convention. It
is, in its religious dimension, one of the most vital elements that go to make
up the identity of believers and their conception of life, but it is also a
precious asset for atheists, agnostics, sceptics and the unconcerned. The
pluralism indissociable from a democratic society, which has been dearly won
over the centuries, depends on it. [p. 17]
See also Metropolitan Church of Bessarabia
v. Moldova, No. 45701/99, ECHR 2001-XII.
This does not mean that religious differences
trump core national values. On the contrary, as this Court observed in Bruker
v. Marcovitz, [2007] 3 S.C.R. 607:
Not all differences
are compatible with Canada’s fundamental values and, accordingly, not all
barriers to their expression are arbitrary. Determining when the assertion of a
right based on difference must yield to a more pressing public interest is a
complex, nuanced, fact-specific exercise that defies bright-line application.
It is, at the same time, a delicate necessity for protecting the evolutionary
integrity of both multiculturalism and public confidence in its importance. [para. 2]
Or, as the Bouchard-Taylor report observed:
A democratic, liberal
State cannot be indifferent to certain core values, especially basic human
rights, the equality of all citizens before the law, and popular sovereignty.
These are the constituent values of our political system and they provide its
foundation.
(Gérard Bouchard and
Charles Taylor, Commission de consultation sur les pratiques d’accommodement
reliées aux différences culturelles, Building the Future: A Time for Reconciliation
(2008), at p. 134.)
[Emphasis added.]
[132] We have
quoted at length here because in our view state neutrality and pluralism lie at
the heart of this case.
[133] The
balancing exercise that Doré and Loyola
call for in the case before us can be expressed this way: did the decision
of the Law Society not to approve TWU’s faculty of law interfere with freedom
of religion of at least the faculty and students of that institution no more
than is necessary given the statutory objectives of the Law Society?
[134] As we have reviewed at some length, Doré and Loyola clearly
charted the course for the Law Society; the question is: did the Law Society
navigate it?
4.3 The Law Society Did Not Balance Charter Rights
[135] We touched
on this question in our discussion of the administrative law issues. We expand
upon that discussion here.
[136] We have
earlier outlined the procedural history of the treatment of TWU’s application
by the Benchers. It was preceded by consideration and conclusions of the
Federation, the body to whom the Law Society has delegated primary approving
authority under rule 2-54(3).
[137]
We have also described the Law Society’s consideration and rejection of
a resolution to “not approve” TWU’s faculty of law at its meeting of April 11,
2014. We have described at paragraphs 12-20 the due diligence carried out
by the Law Society prior to that meeting. Finally, we have noted the notice to
the profession published by the Law Society before the Special General Meeting
of June 2014. We repeat that notice as it neatly describes the process adopted
by the Law Society before its initial consideration of the “not to approve”
resolution in April 2014:
The decision was made after a
thoughtful and sometimes emotional expression of views and careful
consideration of two Federation reports on the Trinity Western University
application, nearly 800 pages of submissions from the public and the profession
and a submission from TWU, and after thoroughly considering the judgment of the
Supreme Court of Canada in Trinity Western University v. British Columbia
College of Teachers 2001 SCC 31 … and its applicability to the TWU
application. In addition, the Benchers considered a memorandum from former Chief
Justice Finch on the relevant considerations and additional legal opinions as
follows:
1. Finch/Banks - Overview Brief re: Relevant
Considerations for the Law Society in Relation to the Proposed Faculty of Law
at TWU
2. Laskin Opinion on Applicability of SCC
Decision in TWU v. BCCT
3. Gomery Opinion on Academic Qualifications
4. Gomery Opinion on Application of the Charter
5. Gomery Opinion on Scope of Law Society’s
Discretion under Rule 2-27(4.1)
6. Thomas/Foy
Opinion on Application of the Labour Mobility Act and the Agreement
on Internal Trade
[138] A number
of the opinions the Law Society considered are important because they
demonstrate that the Law Society at and before its April 2014 meeting was very much alive to the Charter issues presented by the case and
the proper legal approach to the Law Society’s consideration of a decision
exercising its administrative discretion not to approve TWU’s law school.
[139] The
discussion at the Benchers meeting of April 11, 2014 makes it clear that some
Benchers considered the issue in the context of the balancing exercise mandated
by Doré (decided the previous month)
and Loyola (yet to be decided). Others viewed TWU v. BCCT as
dispositive.
[140] Some members of the Law Society did not accept the Benchers’ April 2014
disposition. As we have related, they sought a Special
General Meeting of the Society to consider a resolution directing the Benchers
to declare TWU’s faculty of law “not approved”.
[141]
The recitals to that proposed resolution are informative.
At one point in oral submissions before us, counsel for the Law Society
suggested that in effect the scheme under the Legal Profession Act and
the Law Society rules constituted the membership at large as the “tribunal”
undertaking the balancing exercise mandated by Doré et al. That position
was soon modified in argument with counsel maintaining that it was always the
Benchers undertaking that task. Still, to the extent that it is suggested that
the membership balanced the competing rights in issue, that is not reflected in
the recitals to the resolution, which are the best evidence of the “reasons” of
the membership. We repeat them:
WHEREAS:
-Section 28 of the Legal
Profession Act permits the Benchers to take steps to promote and improve
the standard of practice by lawyers, including by the establishment,
maintenance and support of a system of legal education;
-Trinity Western University
requires students and faculty to enter into a covenant that prohibits “sexual
intimacy that violates the sacredness of marriage between a man and a woman”;
-The Barristers’ and Solicitors’
Oath requires Barristers and Solicitors to uphold the rights and freedoms of
all persons according to the laws of Canada and of British Columbia;
-There is no compelling evidence
that the approval of a law school premised on principles of discrimination and
intolerance will serve to promote and improve the standard of practice of
lawyers as required by section 28 of the Legal Profession Act, and
-The approval of Trinity Western University, while it
maintains and promotes the discriminatory policy reflected in the covenant,
would not serve to promote and improve the standard of practice by lawyers;
[142] These
recitals suggest that what motivated the resolution adopted at the Special
General Meeting was a concern that a law school “premised on principles of
discrimination and intolerance” would not promote and improve the standard of
practice by lawyers. No mention is made of the concerns with equality of access
to TWU’s faculty of law now advanced by the Law Society and its allied
intervenors as more particularly discussed above. More importantly, no
reference is made to freedom of religion.
[143] We do not
wish to make too much of this point. Ascertaining the motives in the minds of
individual decision-makers is not generally a simple or useful task and, in any
event, the members did not have the authority to make the decision. But it does
serve to belie the suggestion, if it is still maintained, that the membership was
providing their considered views on how best to accommodate the competing
values implicated by the decision “not to approve”. And to the extent it has
been demonstrated that concerns with the “standard of practice by lawyers”
motivated the membership, it raises parallels with the downstream concerns with
TWU teachers in future classrooms that were found to be unsupported by any
evidentiary basis in TWU v. BCCT.
[144] This
brings us again to the important meeting of the Benchers on September 26, 2014
and the resolution adopted at that meeting. That resolution called for a
referendum to vote on implementation of the Special General Meeting resolution,
with the referendum to be binding on the Benchers.
[145] For the
reasons we have developed in our discussion of the administrative law issues,
we conclude that the Benchers improperly fettered their discretion by binding
themselves to adopt the decision of the majority of members on whether “not to
approve”. It appears they did so altruistically in the sense of letting “democracy”
dictate the result, and letting the members have their say. But in so doing,
the Benchers abdicated their duty as an administrative decision-maker to
properly balance the objectives of the Legal Profession Act with the Charter
rights at stake.
[146]
If there was any doubt that this was the case, one need only look to the
Law Society’s written submissions before Chief Justice Hinkson. We note these
paragraphs:
332. The motion adopted by
the Benchers stated that the referendum would be binding on the Benchers in the
event that (a) 1/3 of all members in good standing of the Law Society vote in
the Referendum; and (b) 2/3 of those voting vote in favour of the Resolution.
It also included the statement that the “Benchers hereby determine that implementation
of the Resolution does not constitute a breach of their statutory duties,
regardless of the results of the Referendum”.
333. The clear implication of the motion is that the
Benchers in favour of the September resolution calling for a referendum had
collectively determined that both approving TWU and refusing to accredit
would be consistent with the Law Society’s statutory duties, in that both
decisions would be a reasonable exercise of the Law Society’s powers under the Legal
Profession Act.
334. Having reached that
conclusion, the Benchers decided that the best and most legitimate way to
resolve the matter would be for the Law Society to adopt the views of the
membership as a whole on this important decision impacting the public
interest in the administration of justice and the honour and integrity of the
profession.
[Underline emphasis added.]
[147] As stated
earlier, although the decision of the Law Society not to approve TWU’s law
school is therefore not entitled to deference, we must decide whether it
nonetheless represents a reasonable balancing of statutory objectives and Charter
rights. We begin by considering whether TWU v. BCCT is dispositive
of the issue.
(a) Is Trinity Western University v. British Columbia College of Teachers Dispositive?
[148] Many
Benchers at the April 14, 2014 meeting considered TWU v. BCCT to be
dispositive of the issues before them. Whether that is so has vexed the
parties, the Federation and other courts considering TWU’s applications. That
case concerns the same university and effectively the same covenant. In issue
was the decision of the British Columbia College of Teachers not to
approve TWU’s teacher training program.
[149] We agree
with the Ontario Court of Appeal in Trinity Western University v. The Law
Society of Upper Canada that TWU v. BCCT is not dispositive. That
case concerned the “downstream” effect of the Covenant on students in public
school classrooms, in particular whether TWU’s Community Covenant and learning
environment might foster intolerant attitudes on the part of its graduate
teachers. The issue of access by LGBTQ individuals to the faculty of education
was not raised directly. However, we also agree with the Ontario Court of
Appeal that the principles in TWU v. BCCT are highly relevant to the
present case in that it involves balancing freedom of religion against the Law
Society’s public interest in considering the impact of its decision on other Charter
values, including sexual orientation equality (paras. 57 and 58).
[150]
One such principle is the limited reach of the Charter (s. 32).
It applies to government, and to the Law Society as a statutory delegate of
government, but it does not apply to private persons and institutions. As the
majority in TWU v. BCCT concluded, TWU as a private institution is
exempted in part from human rights legislation and the Charter does not
apply to it:
[25] Although
the Community Standards are expressed in terms of a code of conduct rather than
an article of faith, we conclude that a homosexual student would not be tempted
to apply for admission, and could only sign the so-called student contract at a
considerable personal cost. TWU is not for everybody; it is designed to address
the needs of people who share a number of religious convictions. That said, the
admissions policy of TWU alone is not in itself sufficient to establish
discrimination as it is understood in our s. 15 jurisprudence. It is
important to note that this is a private institution that is exempted, in part,
from the British Columbia human rights legislation and to which the Charter
does not apply. To state that the voluntary adoption of a code of conduct
based on a person’s own religious beliefs, in a private institution, is
sufficient to engage s. 15 would be inconsistent with freedom of
conscience and religion, which co-exist with the right to equality. [Emphasis
added.]
[151] These are
important considerations. TWU’s admissions policy does not amount to a breach
of the Charter — it is
not “unlawful discrimination”. That is not to say that it does not have an
impact on LGBTQ individuals that must be considered, but the lawfulness of TWU’s
policy is significant to the balancing exercise.
[152]
Another principle is that equality guarantees under the Charter
and provincial human rights legislation, including protection against
discrimination based on sexual orientation, are a proper consideration when a
statutory decision-maker acts in the public interest (at para. 27):
While the BCCT
was not directly applying either the Charter or the province’s human
rights legislation when making its decision, it was entitled to look to these
instruments to determine whether it would be in the public interest to allow
public school teachers to be trained at TWU.
[153]
The majority in TWU v. BCCT also underscored the
obligation (at para. 28) to consider issues of religious freedom, quoting
Justice Dickson’s elegant statement from Big M Drug Mart Ltd. which we
reproduced earlier. It ends thus:
What may appear
good and true to a majoritarian religious group, or to the state acting at
their behest, may not, for religious reasons, be imposed upon citizens who take
a contrary view. The Charter safeguards religious minorities from the
threat of “the tyranny of the majority”.
The majority in TWU v. BCCT continued
(at para. 28):
It is interesting to note that this passage presages the very
situation which has arisen in this appeal, namely, one where the religious
freedom of one individual is claimed to interfere with the fundamental rights
and freedoms of another. The issue at the heart of this appeal is how to
reconcile the religious freedoms of individuals wishing to attend TWU with the
equality concerns of students in B.C.’s public school system, concerns that may
be shared with their parents and society generally. [Emphasis
added.]
[154]
Although the discrimination alleged in TWU v. BCCT was not unequal
access to teacher training spots for LGBTQ individuals, the majority expressly
addressed that question and recognized that the reconciliation of competing
rights must take into account the context of private religious institutions (at
para. 34):
Consideration of
human rights values in these circumstances encompasses consideration of the
place of private institutions in our society and the reconciling of competing
rights and values. Freedom of religion, conscience and association coexist with
the right to be free of discrimination based on sexual orientation. Even
though the requirement that students and faculty adopt the Community Standards
creates unfavourable differential treatment since it would probably prevent
homosexual students and faculty from applying, one must consider the true
nature of the undertaking and the context in which this occurs. Many
Canadian universities, including St. Francis Xavier University, Queen’s
University, McGill University and Concordia University College of Alberta, have
traditions of religious affiliations. Furthermore, s. 93 of the Constitution
Act, 1867 enshrined religious public education rights into our
Constitution, as part of the historic compromise which made Confederation
possible. [Emphasis added.]
[155]
The majority then addressed the difficult question of where to draw the
line, concluding (at para. 36):
Instead, the proper
place to draw the line in cases like the one at bar is generally between belief
and conduct. The freedom to hold beliefs is broader than the freedom to act on
them. Absent concrete evidence that training teachers at TWU fosters
discrimination in the public schools of B.C., the freedom of individuals to
adhere to certain religious beliefs while at TWU should be respected. The
BCCT, rightfully, does not require public universities with teacher education
programs to screen out applicants who hold sexist, racist or homophobic
beliefs. For better or for worse, tolerance of divergent beliefs is a hallmark
of a democratic society. [Emphasis added.]
[156]
TWU v. BCCT thus determined that in balancing competing Charter
rights and values, the impact of an administrative decision must be assessed on
the basis of “concrete evidence”, not conjecture. Since there was no specific
evidence of harm arising out of the beliefs buttressed by the Community
Standards, the restriction on freedom of religion worked by the decision of the
B.C. College of Teachers could not be justified. In supporting the order of mandamus
directing accreditation of TWU’s program, the majority noted that the “only
reason for denial of certification was the consideration of discriminatory
practices” (para. 43):
In considering
the religious precepts of TWU instead of the actual impact of these beliefs on
the school environment, the BCCT acted on the basis of irrelevant
considerations. It therefore acted unfairly.
[157]
It was argued before us that TWU v. BCCT should not be followed
today. It was said that lower courts may reconsider a decision where, in the
words of the Supreme Court of Canada in Canada (Attorney General) v. Bedford,
2013 SCC 72 at para. 42:
… new legal issues
are raised as a consequence of significant developments in the law, or if there
is a change in the circumstances or evidence that fundamentally shifts the parameters
of the debate.
[158] The last
decade has seen an evolutionary advance of the law in the protection of the
rights and freedoms of LGBTQ persons as full participants in our society and
its institutions, but the essential legal analysis posited in TWU v. BCCT has
not changed appreciably with respect to the obligation to balance statutory
objectives and the Charter rights affected by an administrative
decision. To the contrary, that balancing exercise has been confirmed and
developed in Doré and Loyola.
[159]
The decision of the Supreme Court of Canada in Saskatchewan (Human
Rights Commission) v. Whatcott, 2013 SCC 11 is relevant here. That decision
was considered by John B. Laskin, who provided an opinion to the Federation
during its consideration of TWU’s application. We reproduce and adopt this
portion of that opinion (which in general supported the applicability of TWU
v. BCCT to today’s context):
In Whatcott, the Court
addressed the constitutional validity of the prohibition of hate speech in
Saskatchewan human rights legislation. It was alleged that certain flyers
distributed by Whatcott infringed the prohibition by promoting hatred on the
basis of sexual orientation; Whatcott maintained that the flyers constituted
the exercise of his freedom of expression and freedom of religion. The Court
saw the case as requiring it
to balance the fundamental values
underlying freedom of expression (and, later, freedom of religion) in the
context in which they are invoked, with competing Charter rights and
other values essential to a free and democratic society, in this case, a
commitment to equality and respect for group identity and the inherent dignity
owed to all human beings.
In striking this balance, which resulted in its severing
certain portions of the prohibition but upholding the remainder, and finding
the conclusion that there was a contravention of the legislation unreasonable
for two of the four flyers in issue and reasonable for the other two, the Court
stated that “the protection provided under s. 2(a) [the freedom of
religion guarantee] should extend broadly,” and that “[w]hen reconciling Charter
rights and values, freedom of religion and the right to equality accorded
all residents of Saskatchewan must co-exist.” It also referred to the “mistaken
propensity to focus on the nature of the ideas expressed, rather than on the
likely effects of the expression.”
Just as in BCCT, the
Supreme Court in Whatcott found the proper balance point between
equality and freedom of religion values to be the point at which conduct linked
to the exercise of freedom of religion resulted in actual harm. Absent evidence
of actual harm, it held in both cases, freedom of religion values must be given
effect. [Emphasis added; footnotes omitted.]
[160]
In its argument before the chambers judge, the Law Society submitted
that the legal landscape had changed so much in this area of the law that the
Supreme Court of Canada in Whatcott unanimously adopted the following
portion of L’Heureux-Dubé J.’s dissent in TWU v. BCCT (para. 69):
I am dismayed that at
various points in the history of this case the argument has been made that one
can separate condemnation of the “sexual sin” of “homosexual behaviour” from
intolerance of those with homosexual or bisexual orientations. This position alleges
that one can love the sinner, but condemn the sin. ... The status/conduct or
identity/practice distinction for homosexuals and bisexuals should be soundly
rejected, as per Madam Justice Rowles: “Human rights law states that
certain practices cannot be separated from identity, such that condemnation of
the practice is a condemnation of the person” (para. 228). She added that “the
kind of tolerance that is required [by equality] is not so impoverished as to
include a general acceptance of all people but condemnation of the traits of
certain people” (para. 230). This is not to suggest that engaging in
homosexual behaviour automatically defines a person as homosexual or bisexual,
but rather is meant to challenge the idea that it is possible to condemn a practice
so central to the identity of a protected and vulnerable minority without
thereby discriminating against its members and affronting their human dignity
and personhood.
[161] However, when
adopting this portion of Justice L’Heureux-Dubé’s judgment, the court in Whatcott
noted that she was not in dissent on this point. We conclude that the law in
this regard has not changed since these views were expressed in 2001.
[162] In
summary, while TWU v. BCCT is not dispositive of the issues before us,
the principles enunciated in that decision provide significant guidance in the
present case.
(b) The Balancing Exercise
[163] We turn
now to the balancing exercise, and begin with a review of some basic
principles.
[164] First, while
the rights identified by the Law Society and its allied intervenors are
significant and deserve protection and encouragement to flourish in a
progressive society, respectfully, the starting premise cannot be that they
trump the fundamental religious freedom rights advanced by TWU. The Charter
does not create a hierarchy of rights with some to be treated as more important
than others: Gosselin (Tutor of) v. Quebec (Attorney General), 2005 SCC
15 at para. 26.
[165] Second, the
Charter rights we have described must be considered and balanced against
the statutory objectives of the Law Society, here the “public interest in the
administration of justice” and “preserving and protecting the rights and
freedoms of all persons”: s. 3(a) of the Legal Profession Act.
Acting in “the public interest” does not mean making a decision with which most
members of the profession or public would agree.
[166] Third, the
balancing exercise goes beyond simply considering the competing rights engaged
and choosing to give greater effect to one or the other, with either course of
action being equally reasonable. Rather, the nature and degree of the
detrimental impact of the statutory decision on the rights engaged must be
considered. The robust proportionality test called for in Doré requires no less.
(i) Impact of the decision on religious freedom
[167] As Justice Abella made clear in Loyola, the Charter right
to freedom of religion recognizes and protects the “embedded nature of
religious belief, and the deep linkages between this belief and its
manifestation through communal institutions and traditions”, including private
educational institutions (at para. 60).
[168] In our view, the detrimental impact of the Law Society decision on TWU’s
right to religious freedom is severe. The legal education of TWU graduates
would not be recognized by the Law Society and they could not apply to practise
law in this province. TWU’s religious freedom rights as an institution are also
significantly impacted by the decision. While the
Ontario Court of Appeal assumed TWU could continue to operate a law school even
if the LSUC refused to recognize the qualifications of its graduates, the
effect of non-approval by the Law Society is not so limited. The immediate
result of the October resolution “not to approve” was the government’s
revocation of TWU’s ministerial consent under the Degree Authorization Act,
R.S.B.C. 2002, c. 24. While this revocation may not be irreversible, it
represents at this time a complete bar to TWU operating a law school.
[169] We are
unable to accept the argument that TWU’s freedom of religion is not infringed
because it remains free to operate a private law school, even if it is unable
to grant degrees that are recognized or accredited by the Law Society. Such a
contention fails to recognize that the main function of a faculty of law is to
train lawyers.
(ii) Impact of the decision on sexual orientation equality rights
[170] We turn
next to consider the impact of the decision on the equality rights of LGBTQ
individuals. The Law Society and related intervenors identified two such
impacts, which we have noted earlier. First, they contend there would be fewer
law school seats available to LGBTQ students; and second, there would be harm
to the dignity and personhood of LGBTQ individuals from the Law Society endorsing
a law school with a code of conduct that is offensive to the vast majority of
LGBTQ persons because it denies the validity of same-sex marriage. We will
consider each impact in turn.
Inequality of access to
law school
[171] We accept
that if TWU’s law school is approved, there is a potential detrimental effect
on LGBTQ equality rights. While on the evidence there are LGBTQ students who
have voluntarily signed the Covenant and embraced the TWU community’s values,
it is indisputable that the vast majority of LGBTQ law students could not sign
the Covenant.
[172] We have
described the adverse effects on LGBTQ persons that would ensue if they were to
sign the Community Covenant to gain access to TWU: they would have to either “live
a lie to obtain a degree” and sacrifice important and deeply personal aspects
of their lives, or face the prospect of disciplinary action including expulsion.
[173] However,
as the majority noted in TWU v. BCCT, this impact must be considered in
context and concretely. Is there evidence that the existence of a law school at
TWU would impede access to law school and hence the profession for LGBTQ
students?
[174]
That precise question was thoroughly considered by the Special Committee
of the Federation, the decision-maker with first responsibility for deciding
whether the approval of a law school for TWU was in the public interest:
As a starting point, we are not
aware of any evidence that TWU limits or bans the admission to the university
of LGBT individuals. A number of those who made submissions to the Federation
noted that there are LGBT students at TWU. It is reasonable to conclude that
the requirement to adhere to the Community Covenant would make TWU an un
welcoming [sic] place for LGBT individuals and would likely
discourage most from applying to a law school at the university, but it may
also be that a faith-based law school would be an attractive option for some
prospective law students, whatever their sexual orientation. It is also
clear that approval of the TWU law school would not result in any fewer choices
for LGBT students than they have currently. Indeed, an overall increase in law
school places in Canada seems certain to expand the choices for all students.
[Emphasis added.]
These findings are entitled to deference; they were
based on numerous submissions to the Federation, including legal advice sought
by the Federation.
[175] In
assessing whether the decision of the Law Society met its public interest
objective of ensuring access to the practice of law for LGBTQ individuals, it
is incontrovertible that refusing to recognize the TWU faculty will not enhance
accessibility. The Law Society does not control where law school seats will be
created; it is not a matter, then, of this refusal resulting in the opening up
of 60 places in a public “equal access” law school.
[176] Further,
it must be recognized that it is the Covenant’s refusal to recognize same-sex
marriage that is in issue here. The Law Society was prepared to approve the law
school if TWU agreed to remove the offending portions of the Covenant requiring
students to abstain from “sexual intimacy that violates the sacredness of
marriage between a man and a woman”. However, even without that term, TWU’s
faculty of law would be part of an evangelical Christian community that does
not accept same-sex marriage and other expressions of LGBTQ sexuality. If we
are to assess the detrimental impact of the decision concretely and in context,
in reality very few LGBTQ students would wish to apply to study in such an
environment, even without the Covenant.
[177]
This is not a cynical observation. It was effectively made by the
Supreme Court of Canada in TWU v. BCCT (at para. 25):
… we conclude that
a homosexual student would not be tempted to apply for admission, and could
only sign the so-called student contract at a considerable personal cost. TWU
is not for everybody; it is designed to address the needs of people who share a
number of religious convictions.
[178] TWU is a
relatively small community of like-minded persons bound together by their
religious principles. It is not for everyone. For those who do not share TWU’s
beliefs, there are many other options. It has been suggested in argument that
TWU is, in effect, a segregated community, and that the accreditation of its
law program would amount to the endorsement of a “separate but equal” doctrine.
We are not persuaded that that is a fair characterization. The long discredited
“separate but equal” doctrine was offensive because it forced segregation on an
oppressed minority. In the context of this case, the members of the TWU
community constitute a minority. A clear majority of Canadians support the
marriage rights of the LGBTQ community, and those rights enjoy constitutional
protection. The majority must not, however, be allowed to subvert the rights of
the minority TWU community to pursue its own values. Members of that community are
entitled to establish a space in which to exercise their religious freedom.
[179] Thus,
while we accept that approval of TWU’s law school has in principle a
detrimental impact on LGBTQ equality rights because the number of law school places
would not be equally open to all students, the impact on applications made, and
hence access to, law schools by LGBTQ students would be insignificant in real
terms. TWU’s law school would add 60 seats to a total class of about 2,500
places in common law schools in Canada. The admission standards for TWU are not
anticipated to be lower than those of other law schools; some number of TWU’s
students would likely be diverted from other faculties of law. As a result, as
the Federation concluded, the increase in the number of seats overall is likely
to result in an enhancement of opportunities for all students.
[180] Further,
as we have noted earlier, the decision not to approve will not increase
accessibility to law school for LGBTQ students. The number of seats would
remain the same.
Law Society endorsement
of the Covenant
[181] As for the
public interest objective of the Law Society as a state actor not being seen to
endorse the discriminatory aspects of the Covenant by giving TWU the benefit of
accreditation, we suggest that this premise is misconceived.
[182] We note
parenthetically that TWU is not seeking a financial public benefit from this
state actor. This is not the tax break sought in Bob Jones University v.
United States, 461 U.S. 574 (1983), a monetary benefit to which Bob Jones
University was not otherwise entitled. Accreditation is not a “benefit” granted
in the exercise of the largesse of the state; it is a regulatory requirement to
conduct a lawful “business” which TWU would otherwise be free to conduct in the
absence of regulation. While there is a practical benefit to TWU flowing from
the regulatory approval, it is not a funding benefit and the reliance on the
comments of a single concurring justice in the Bob Jones case is misplaced.
Nor do we see Bob Jones University as supporting a general principle
that discretionary decision-makers should deny public benefits to private
applicants.
[183] We return
then to the submission that the approval of TWU’s law school would amount to
endorsing discrimination against LGBTQ individuals. It is significant that the
Law Society was prepared to accredit TWU’s law school if the Covenant was
amended to remove the offending reference to marriage. It is not argued that
regulatory approval would then amount to endorsing the continued substantive
belief of this evangelical Christian university’s views on marriage. In our
view, this example underscores the weakness of the premise that regulatory
approval amounts to endorsement of the applicant’s beliefs.
[184] In a
diverse and pluralistic society, this argument must be treated with
considerable caution. If regulatory approval is to be denied based on the state’s
fear of being seen to endorse the beliefs of the institution or individual
seeking a license, permit or accreditation, no religious faculty of any kind
could be approved. Licensing of religious care facilities and hospitals would
also fall into question.
[185] State
neutrality is essential in a secular, pluralistic society. Canadian society is
made up of diverse communities with disparate beliefs that cannot and need not
be reconciled. While the state must adopt laws on some matters of social policy
with which religious and other communities and individuals may disagree (such
as enacting legislation recognizing same-sex marriage), it does so in the
context of making room for diverse communities to hold and act on their
beliefs. This approach is evident in the Civil Marriage Act, S.C. 2005,
c. 33 itself, which expressly recognizes that “it is not against
the public interest to hold and publicly express diverse views on marriage”.
[186]
That there will be conflicting views and beliefs is inevitable, but as
Professor William Galston observes in “Religion and the Limits of Liberal
Democracy” (in Douglas Farrow, ed., Recognizing Religion in a Secular
Society: Essays in Pluralism, Religion, and Public Policy (McGill-Queen’s
University Press, 2004) at 47 and 49):
… [P]luralists refuse to resolve these problems by allowing
public authorities to determine the substance and scope of allowable belief
(Hobbes) or by reducing faith to civil religion and elevating devotion to the
common civic good as the highest human value (Rousseau). Fundamental tensions
rooted in the deep structure of human existence cannot be abolished in a stroke
but must rather be acknowledged, negotiated, and adjudicated with due regard to
the contours of specific cases and controversies.
…
This does not mean that all
religiously motivated practices are equally deserving of accommodation or
protection. Some clearly are not. Religious associations cannot be permitted to
… endanger the basic interests of children by withholding medical treatment in
life-threatening situations. But there is a distinction between basic human
goods, which the state must defend, and diverse conceptions of flourishing
above that base-line, which the state should accommodate to the maximum extent
possible. There is room for reasonable disagreement as to where that line
should be drawn. But an account of liberal democracy built on a foundation of
political pluralism should make us very cautious about expanding the scope of
state power in ways that mandate uniformity.
[187] As the
Court noted in Loyola at para. 43, “a secular state does not — and
cannot — interfere with the beliefs or practices of a religious group unless
they conflict with or harm overriding public interests”.
[188] We address
here the submission, made by the Law Society intervenors and accepted by the
Ontario Court of Appeal, that the Community Covenant “is deeply discriminatory,
and it hurts”. The balancing of conflicting Charter rights requires a
statutory decision-maker to assess the degree of infringement of a decision on
a Charter right. While there is no doubt that the Covenant’s refusal
to accept LGBTQ expressions of sexuality is deeply offensive and hurtful to the
LGBTQ community, and we do not in any way wish to minimize that effect, there
is no Charter or other legal right to be free from views that offend and
contradict an individual’s strongly held beliefs, absent the kind of “hate
speech” described in Whatcott that could incite harm against others (see
paras. 82, 89-90 and 111). Disagreement and discomfort with the views of
others is unavoidable in a free and democratic society.
[189] Indeed, it
was evident in the case before us that the language of “offense and hurt” is
not helpful in balancing competing rights. The beliefs expressed by some
Benchers and members of the Law Society that the evangelical Christian
community’s view of marriage is “abhorrent”, “archaic” and “hypocritical” would
no doubt be deeply offensive and hurtful to members of that community.
4.4 Conclusion on Charter Balancing
[190] The TWU
community has a right to hold and act on its beliefs, absent evidence of actual
harm. To do so is an expression of its right to freedom of religion. The Law
Society’s decision not to approve TWU’s faculty of law denies these evangelical
Christians the ability to exercise fundamental religious and associative rights
which would otherwise be assured to them under s. 2 of the Charter.
[191] In 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, and bearing in mind the Doré
obligation to ensure that Charter rights are limited “no more than is
necessary” (para. 7), we conclude that a decision to declare TWU not to be
an approved law faculty would be unreasonable.
[192] In our
view, while the standard of review for decisions involving the Doré/Loyola analysis is reasonableness
and there may in many cases be a range of acceptable outcomes, here (as was the
case for the minority in Loyola) there can be only one answer to the
question: the adoption of a resolution not to approve TWU’s faculty of law would
limit the engaged rights to freedom of religion in a significantly
disproportionate way — significantly more than is reasonably necessary to meet
the Law Society’s public interest objectives.
[193] A society
that does not admit of and accommodate differences 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.
V. CONCLUSION
[194]
The appeal is dismissed.
“The Honourable Chief Justice Bauman”
“The Honourable Madam Justice Newbury”
“The Honourable Mr. Justice Groberman”
“The Honourable Mr. Justice Willcock”
“The Honourable Madam Justice Fenlon”
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