Last July, the Divisional Court of Ontario upheld the decision of the Law Society of Upper Canada (LSUC) to deny accreditation of Trinity Western University’s proposed law school. LSUC’s denial was based on opposition to TWU’s Community Covenant which, among other things, upholds a religious understanding of marriage and sexuality. TWU appealed.
CLF intervened in the appeal in support of the constitutional rights and freedoms of TWU and its students, submitting written arguments in late April and participating in the appeal hearing on June 6-7.
Today, the Ontario Court of Appeal upheld the Divisional Court’s decision.
The Court states at the outset of its judgement that one consequence of defining Charter rights broadly is that they may then either collide with important government objectives, or, more rarely, two broadly interpreted rights or freedoms may collide with each other.
This case, the Court concludes, falls into the second category: it supposedly involves “a collision between religious freedom and equality, both of which are protected in the Charter and both of which have been defined and interpreted in a generous fashion by the Supreme Court of Canada.”
Contrary to what the Law Society argued in its factum (but modified at the court hearing), the Court of Appeal affirmed that TWU’s freedom of religion was infringed by the Law Society’s denial of accreditation. Writing for the Court, Justice MacPherson also noted it was “readily apparent” that the religious freedom of Mr. Volkenant (the student co-applicant who sought to attend TWU) was engaged in this case:
"For Mr. Volkenant, attending TWU’s proposed law school would allow him to not only practise the Covenant’s values […] but also to participate in an educational community, consisting largely of like-minded individuals, that embraces values grounded in evangelical Christian beliefs about the conduct both prescribed and proscribed by the Covenant."
The religious nature of the choice to attend TWU was a major emphasis of CLF’s submissions. Derek Ross, CLF’s Executive Director and legal counsel in this proceeding, comments:
"The Law Society continued to argue that religious freedom was not even engaged in this case until the hearing of oral arguments in this appeal, despite the fact that every court that has considered TWU's proposed law school has determined the exact opposite. The Law Society's failure to recognize the comprehensive nature of a law student's faith and its relevance to the study and practice of law demonstrates, perhaps more than anything else, the need for a law school that does."
As for TWU as an institution, Justice MacPherson stated that “it is clear that freedom of religion under the Charter has a collective aspect” and that it too is engaged in this case.
However, the court did not fully address the scope and nature of the Charter infringement for Mr. Volkenant or other law students wishing to attend TWU. The court suggested that these students would still be free to attend an (unaccredited) law school at TWU in accordance with their religious beliefs. The Court concluded it would be premature to assess any violations of TWU graduates’Charter rights should they face some “alternate process to be admitted to the Bar of Ontario” as a result of attending an unaccredited law school.
Although the court acknowledged that this uncertainty would likely discourage prospective law students from attending TWU, it did so only in the context of considering TWU's ability to attract students, and did not address the impact this would have on the student herself. As CLF argued, that student has effectively been denied the opportunity to study law - in order to be a lawyer - within a Christian environment. Mr. Ross comments:
"The right to attend a religious law school, without the right to practice law, is an impoverished right. As the Supreme Court of Canada recognized in 2001, a student should not be denied a professional license because they choose to affirm their religious beliefs and attend a religious university such as TWU. Law students have the right to adopt personal rules of conduct based on their religious beliefs, not just as individuals, but collectively within a religious community, including in an accredited religious university. They should not be punished or disadvantaged by the state for exercising that freedom, which is the effect of the Law Society’s Decision."
As for the infringement of TWU’s religious freedom, the Court found that it was a reasonable limit on freedom of religion in light of the Law Society’s statutory objective to protect the public interest.
The Court agreed with the Divisional Court that the Trinity Western University v British Columbia College of Teachers decision of the Supreme Court of Canada in 2001 was not determinative of the outcome in this case, but was still an “an important consideration in the resolution of the issues that are presented to us”. Little attention was given, however, to a number of principles from that important precedent which continue to be relevant. These principles include:
- TWU is a private institution to which the Charter does not apply and which is exempted, in part, from human rights legislation;
- Consideration of human rights “values” encompasses consideration of the important place of private institutions in our society;
- Section 15 of the Charter protects equally against discrimination on the basis of religion;
- A private institution’s adoption of a voluntary code of conduct is not sufficient to engage section 15 rights, which apply vis-à-vis the state; and
- Freedom of religion is not accommodated if the consequence of its exercise is the denial of the right of full participation in society.
The Court of Appeal ruling is troubling for other reasons as well. It draws comparisons to the case of Bob Jones University, which involved a very different set of facts and a blatantly racist college policy. The Court also accepted the submission of one of the interveners that TWU discriminates “by forcing [LGBTQ persons] to renounce their dignity” and that LGBTQ persons at TWU “will experience the stigma of not belonging”. This despite the fact that TWU’s Covenant affirms the inherent dignity and equal worth of all persons and the evidence on the record shows that LGBTQ students have felt welcomed at TWU.
As CLF argued in its factum, “[T]he fact that a religious university encourages and helps students within a particular religious community to obtain an education is a social good. Simply because it serves people who affirm its religious beliefs, does not mean it does so at others’ expense.”
TWU has already announced that it will be appealing the decision. Decisions from Courts of Appeal in Nova Scotia and British Columbia, where CLF also intervened, are still pending. CLF remains committed to defending the fundamental freedoms of religious lawyers and law students as matters progress.
To read the Ontario Court of Appeal’s decision, click here.
To read CLF’s written submissions to the Ontario Court of Appeal, click here.