For immediate release
“…[T]here is wisdom in the idea that the public sphere is for all to share, even where beliefs differ.”
OTTAWA, ON — In two companion judgments released today, the Supreme Court of Canada (SCC) was split on whether it was reasonable for the Law Societies to deny approval to Trinity Western University’s proposed law school based on its Community Covenant and the Biblical view of marriage expressed therein.
A majority of five judges (Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ) concluded that the Law Societies’ decisions were reasonable, and upheld them accordingly. McLachlin CJC and Rowe J each agreed in the outcome, but for different reasons, set out in separate opinions. In a strongly worded dissent, Justices Côté and Brown disagreed, stating: “Pluralism, and the religious accommodation necessary to secure it, is inherently valuable. In a country whose people sometimes harbour conflicting moral values that cannot be reconciled to a single conception of how one should live life, there is wisdom in the idea that the public sphere is for all to share, even where beliefs differ.”
Christian Legal Fellowship (CLF) intervened in all seven court proceedings, in three provinces and at the Supreme Court. Derek Ross, CLF’s Executive Director and legal counsel in this intervention, comments on the decision:
“While many have tried to frame this case as a clash between religious freedom and equality rights, it needn’t be so. Charter rights are not competitors in a zero-sum game. They can be fully exercised in co-existence, as the Supreme Court recognized in the first TWU case in 2001. Since that time, both equality rights and religious freedom have enjoyed expanding interpretations: in tandem, not competition. In the very context of expanding equality rights on the grounds of sexual orientation, religious freedom has been strongly affirmed. It is disappointing that, in today’s decision, the majority departed from this approach.
We are encouraged by the eloquent dissent written by Justices Côté and Brown, which affirms that a free and democratic society must “protect rights-holders from majoritarian values, not to force conformance to those values” and that “the public interest in fostering a liberal, pluralist society is served by accommodating religious freedom.” True diversity makes room for religious communities like TWU. True diversity does not try to obliterate disagreement or force minorities to conform to state-approved beliefs. ”
Background:
Today’s decisions centred on a proposed law school at Trinity Western University (TWU), a private, evangelical university located in Langley, BC. TWU’s proposed law school was initially approved by the BC Minister of Advanced Education and the Federation of Law Societies of Canada. However, it was met with opposition by the Law Societies of BC and Ontario, who objected to TWU’s “Community Covenant” (code of conduct), and in particular, the Biblical view of marriage expressed in it.
Decision:
The majority decision was authored jointly by Justices Abella, Moldaver, Karakatsanis, Wagner, and Gascon. They accepted that the TWU community’s religious freedom was “limited” by the Law Societies’ decisions, but found that the limitation was justified. The majority concluded that the decisions were a proportionate balancing of the religious rights at stake and the law societies’ statutory objectives, including maintaining equal access to and diversity in the profession, and upholding a positive public perception of the legal profession. They suggested that their ruling was limited in scope, noting that the decision would not “prevent any graduates from being able to practice law” or from “adhering to the Covenant or associating with those who do”; rather, the effect of the decision was “limited to preventing prospective students from studying law at TWU with a mandatory covenant” (para 86, TWU v LSBC).
The majority also stressed that the negative impact on the freedom of religion was of “minor significance” for TWU students for two reasons. First, it only prevented prospective students “from studying law in their optimal religious learning environment” (para 87, emphasis in original). Second, the Community Covenant, while “preferred” by the TWU community, is not “necessary” for their spiritual growth (para 88).
This aspect of the majority’s reasoning was heavily critiqued by outgoing Chief Justice Beverly McLachlin in a concurring decision—her final judgment for the Court. Although she agreed in the result, she stressed that the religious freedom infringement was significant: “I cannot agree that the impact of the decision on the freedom of religion of members of the TWU community is ‘of minor significance’ … the majority fails to acknowledge the significance that all members abiding by the same code of conduct has for a religious community” (para 129).
Likewise, Chief Justice McLachlin found that the “optional” nature of having a Community Covenant does not reduce the infringement of religious freedom: “[t]he fact that some individuals may be prepared to give up the religious practice does not make it a minor infringement” (para 132). Further, the Covenant should not be devalued simply “because it compels non-believers to follow TWU’s practices”. Rather, “[t]here is a deep tradition in religious schools of welcoming non-adherents as students, provided they agree to abide by the norms of the community” (para 133).
However, when it came to whether the Law Societies had reasonably balanced TWU’s rights against their statutory objectives, the Chief Justice agreed with the majority, finding that the Law Societies have a duty to protect the public interest, and that this mandate includes “refusing to condone discrimination” (para 137).
Justice Rowe reached the same result, but through very different reasoning. While Chief Justice McLachlin took issue with the majority’s characterization of the religious freedom infringement as “minor”, Justice Rowe found that TWU’s religious freedom was not infringed at all. He argued that the scope of religious freedom extends only to protect “the freedom of individuals to believe in whatever they choose and to manifest those beliefs” (para 220). Requiring community members to adhere to a Community Covenant, he finds, is not protected by the Charter: section 2(a) does not protect a right “to impose adherence to religious practices on those who do not voluntarily adhere thereto” (para 242).
Justices Côté and Brown participated in dissenting reasons. Their reasons reveal a very different understanding of the issues at stake: the decision, they state, is about “who controls the door to ‘the public square’” (para 260). They state that the Law Societies exercise that control, and must “foster pluralism by striving to accommodate difference in the public life of civil society” (para 260). However, in rejecting TWU, the Law Societies have in fact “denied [access to the public square] to a segment of Canadian society, solely on religious grounds” (para 261).
Justices Côté and Brown reject the other justices’ conception of the Law Societies’ mandate. In their view, the Law Societies are only charged with ensuring the competency of applicants for licensing. The majority’s reasons, they state, “extend the reach [of the Law Societies] all the way back to the law school’s threshold.” But the Law Societies must take applicants as they come; they are empowered “to control the doorway to the profession, not to decide who knocks on the door” (para 290).
Justices Côté and Brown also reject the contention that “refusing to condone discrimination” is a valid basis for rejecting TWU: “Equating approval to condonation turns the protective shield of the Charter into a sword by effectively imposing Charter obligations on private actors” (para 338). Thus, in rejecting TWU, the Law Societies acted far outside their statutory authority.
In reaching this result, the dissenting justices reject the majority’s treatment of “Charter values” as equivalent to Charter rights. On this point, they are in agreement with Justice Rowe. While the majority relied upon the contention that the Law Societies had “an overarching interest in protecting the values of equality and human rights” (para 41), Justices Côté and Brown state that “one judge’s understanding of ‘equality’ might indeed represent a ‘shared value’ with all Canadians, but perhaps another judge’s might not” (para 308). Reliance on Charter values is dangerous because “Canadians are permitted to hold different sets of values. One person’s values may be another person’s anathema.” Justices Côté and Brown “see nothing troubling in this… What is troubling, however, is the imposition of judicially preferred ‘values’ to limit constitutionally protected rights, including the right to hold other values” (para 308).
Justices Côté and Brown find that the religious freedom right of the TWU community was substantially infringed by the Law Societies’ decisions. They agree with Chief Justice McLachlin that religious freedom “also captures the freedom of members of the TWU community to express their religious beliefs through the Covenant and to associate with one another in order to study law in an educational community which reflects their religious beliefs” (para 316). They therefore reject Justice Rowe’s narrowing of the freedom as one which “does not begin to account” for the scope of activities protected by it (para 317). Thus, it is not surprising that they find that the Law Societies’ decisions “[undermine] the core character of a lawful religious institution and [disrupt] the vitality of the TWU community” (para 324).While the dissenting Justices consider the majority’s interpretation of the Law Societies’ statutory mandate “overbroad” (para 326), they find that, even if the Law Societies were entitled to consider the “public interest” in making their decision, “[a]ccommodating religious diversity is in ‘the public interest’”, and “approving the proposed law school does not condone discrimination against LGBTQ persons” (para 326, emphasis in original).
Finally, Justices Côté and Brown criticize the majority’s conception of what it means to have a pluralistic, secular state: “Properly understood, secularism connotes pluralism and respect for diversity, not the suppression of full participation in society by imposing a forced choice between conformity with a single majoritarian norm and withdrawal from the public square” (para 332).
CLF’s Submissions:
CLF made both written and oral submissions to the Supreme Court.
CLF’s written submissions focused on the Law Societies’ public interest mandate. The Law Societies are charged with regulating the legal profession “in the public interest”; CLF explained why it was both unconstitutional and contrary to the public interest to exclude law graduates of Trinity Western University from the practice of law.
As CLF argued in its factum, the Law Societies’ public interest mandate cannot be used to override Charter rights: “The public interest is not a sword to enforce moral conformity with the Law Societies' approved values.” Rejecting TWU and its graduates is not in the public interest. In fact, it is contrary to the public interest: such rejection effectively prevents individuals who want to lawfully associate from doing so, and undermines public confidence in lawyers who hold traditional religious beliefs. It also undermines institutional diversity: “Diverse associations and institutions are necessary to a free and democratic society, but such communities cease to exist when the state dictates what their core beliefs ought to be, or requires them to deny such beliefs.” CLF argued that public interests in equality, diversity and pluralism include welcoming religious minorities as active participants in society. This was reflected in Justices Côté and Brown’s dissent, which held that accommodating religious diversity is in the public interest.
CLF’s oral submissions at the Supreme Court prompted robust questioning from the bench. Litigation counsel Derek Ross faced questions about the nature of religious education. He explained that TWU’s mandate is to integrate faith and education, and that for Christians, our chosen vocation—whether law or something else—is a response to a spiritual calling. Thus, religious organizations are not limited to teaching theology, but exist to teach all subjects from the perspective of faith.
About Christian Legal Fellowship (CLF):
Christian Legal Fellowship (CLF) is Canada’s national association of Christian lawyers, law students, and jurists. CLF has over 700 members across Canada practicing in all areas of law. While having no direct denominational affiliation, CLF’s members represent more than 35 Christian denominations working in association together.
Over nearly two decades, CLF has been granted intervener standing in almost 40 cases involving Charter issues—including 12 at the Supreme Court of Canada—seeking to advance justice, protect the vulnerable, promote equality, and advocate for freedom of religion, conscience, and expression.
CLF intervened in all seven court proceedings, in three provinces and at the Supreme Court of Canada, in support of religious freedom, association, and equality. CLF also intervened at the Supreme Court of Canada in the 2001 Trinity Western case.CLF was represented at the Supreme Court of Canada by Derek Ross and Deina Warren. In addition, 15 other CLF lawyer members served as counsel of record to 11 intervening organizations.
Further information:
Read the Supreme Court of Canada’s companion decisions: British Columbia; Ontario.
To read the factum of the Christian Legal Fellowship, click here.
To watch a video of CLF’s oral submissions, click here
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For more information contact:
Sarah Mix-Ross
Associate Counsel
Christian Legal Fellowship
Alliance des chrétiens en droit
519-601-4099
smixross@christianlegalfellowship.org