TWU, and religious freedom, wins again
It is ironic that lawyers have to be reminded that Charter rights cannot be subject to the whim of majority vote. That is the message I got from reading Chief Justice Christopher Hinkson’s decision, released last week, at the British Columbia Supreme Court. This is the third decision made in the continuing saga of Trinity Western University ( TWU) and Canada’s legal profession. TWU is 2 for 1 — having won in British Columbia and Nova Scotia, but lost in Ontario. This saga will, no doubt, go to the Supreme Court of Canada.
TWU is a Christian school of higher learning that had presented, for accreditation, a law school proposal to the Federation of Law Societies of Canada ( FLSC) in June 2012. The federation gave its approval on Dec. 16, 2013 — almost exactly two years ago today — despite considerable opposition of many members of the legal profession. The opposition was the result of TWU’s requirement of all students to sign a community covenant that outlined its lifestyle expectations. Included was the requirement that students not engage in “sexual intimacy that violates the sacredness of marriage between a man and a woman.” This heterosexual, religious norm is thought to be repugnant by a number of influential lawyers and legal academics. For them it seems unfathomable for a Christian law school to be permitted to discriminate against those who were living outside of that norm.
Even with the federation’s approval of TWU, the Law Society of British Columbia (LSBC) decided to conduct its own review. After considerable public debate and public input ( not to mention the expense of redoing what the federation already did), the soci- ety’s benchers on April 11, 2014 reaffirmed TWU’s approval. It appeared the case was settled. Not so. A special general meeting of the members, in June 2014, called on the benchers to reject TWU’s law school. In response to that, the benchers decided to hold a referendum on the matter and stated that they would be bound by whatever the outcome.
In the fall of 2014 a referendum was held and B. C. lawyers decided against TWU. On Oct. 31, 2014 the benchers voted to accept the results of the referendum and removed its approval of TWU’s School of Law. That is where, according to Chief Justice Hinkson, the Law Society of B.C. went wrong. Accepting the referendum results without a thorough evaluation of TWU’s Charter rights was an unjust fettering of its responsibility to ensure procedural f airness. “The goal of procedural fairness,” Hinkson noted, “is to ensure that affected parties have the opportunity to present their case to the ultimate decisionmaker, with the assurance that the evidence presented will be considered fully and fairly.” The LSBC, however, refused “to allow TWU to present its case to the members of the LSBC on the same footing as the case against it was presented” — that was unfair. Further, Hinkson ruled that “( t) he fact that a democratic process was followed in the October referendum proceedings does not protect the decision from scrutiny.” In other words, just because the majority says it’s so — doesn’t make it so.
According to Hinkson, the benchers did weigh “the competing Charter rights of freedom of religion and equality before voting on the April motion” but did not do that when they voted on Oct. 31, 2014, as the LSBC “had bound itself to accept the referendum results of its members.” Hinkson, therefore, quashed that decision and ruled the April decision, approving TWU, stands.
A fair reading of this decision is that when Charter rights are at stake it demands the highest scrutiny of the courts to ensure that every legal principle of fairness is followed. The benchers of the Law Society of B.C. wrestled, intensely so, as to how to balance TWU’s religious freedom rights when the society made its original decision in April 2014 supporting TWU. Politics within the profession, however, resulted in a referendum that demanded the withdrawal of the approval regardless of TWU’s Charter rights. Clearly, the majority of those B.C. lawyers that voted in the referendum were of the view that they were “on the right side of history” and procedural fairness was seen by them as either immaterial or simply forgotten in their quest to remove TWU’s bid for a law school.
Hinkson’s decision is a win for all Canadians — including lawyers.
B.C. lawyers, eager to be seen on the right side of history, seem to have forgotten about being on the right side of the law