SUPREME SCRUTINY
Court mulls religion, law school mix
Canada’s highest court engaged in a lively discussion about religious freedom on Thursday as it began a landmark two-day hearing into the right of Trinity Western University to grant law degrees.
Proposed back in 2012, Canada’s first private law school was expected to open in September 2015, but legal opposition across the nation to the Langley-based institution’s controversial Community Covenant put the plan in limbo.
In the first day of arguments, the nine Supreme Court of Canada justices began weighing the impact of the 2,000-word recitation of Christian values that the school expects students, faculty and staff to embody.
Justice Richard Wagner almost immediately suggested the evangelical school was asking provincial law societies to help discriminate against students who did not agree with the creed.
He said the document forced dissenting students to either not attend TWU or hide their real sexual orientation, something that would cause them pain and suffering.
“To what extent does a right based on religious freedom cause harm to other people in Canadian society?” Wagner asked. “In my book, that’s called discrimination.”
The school denied there was any harm, but the engaged justices appeared skeptical and peppered the lawyers with queries.
“Is there such a thing as a religious law school?” Justice Rosalie Abella pressed. “Can a law school have a religion, and is it the right of the law school to have a religion no matter what its tenets? Have we gone so far? Can a law school be Jewish, Muslim or Christian?”
TWU lawyer Robert Staley looked flummoxed.
“Whose charter right is engaged?” Abella continued. “The law school’s? Is there anything (in previous decisions) that says a law school has a religious right?”
Peter Gall, lawyer for the Law Society of B.C., said he didn’t think so, nor did he want institutions or corporations to have such a right.
Chief Justice Beverley McLachlin wondered how the principles at play would affect her if she opened a law school in her basement after retiring later this year. Justice Suzanne Cote wanted to know if she ran a Jewish-lawyers-only firm, could the law society revoke her licence?
Justice Michael Moldaver said the “elephant in the room” was TWU’s insistence that by refusing to accredit it, the B.C. and Ontario law societies were killing the school because students wouldn’t attend knowing they couldn’t practice in the country’s largest English markets.
The court is specifically considering decisions by the two regulators refusing to accredit the proposed law school on the grounds that the covenant conflicts with the Charter of Rights and Freedoms.
The code of conduct prohibits certain behaviour based on Biblical morality, such as sexual intimacy outside the marriage of a man and a woman, and the school expects unmarried individuals to live chaste, celibate lives.
TWU does not ban lesbian, gay, bisexual or transgendered (LGBTQ) students — the covenant expressly prohibits any form of discrimination or prejudice — but the school does not admit students who refuse to agree to the Christian tenets.
“You have to be an ambassador of the school,” Ontario law society lawyer Guy Pratte noted. “How could a Jewish person or an atheist be an ambassador of those values?”
In 2014, the Law Society of B.C. held a binding referendum among members on whether TWU’s law school should be approved. Based on the outcome, the society refused recognition.
B.C. courts, however, concluded the benchers’ delegation of the issue and acceptance of the referendum result fettered their discretion and ignored their obligation to proportionately balance the competing charter rights related to same-sex marriage and religious freedoms.
The society’s refusal to approve the school was set aside by the B.C. Supreme Court and the watchdog’s appeal was dismissed.
“(The B.C. Court of Appeal) overlooked the impact on the dignity of the LGBTQ community and there is really no discussion of that in their decision,” Gall argued.
“That has an enormous impact on the dignity of the LGBTQ community . ... I think our court of appeal focused too narrowly on the so-called practical effect on the LGBTQ community in terms of access — 60 spaces in the law school out of 400 or so in B.C.”
“It’s not a numbers game,” agreed Justice Andromache Karakatsanis. “They (the B.C. Court of Appeal) don’t mention human dignity, they talk about the number of places available.”
In Ontario, though, the lower court ruled that law society acted appropriately in exercising its statutory mandate to act in the public interest when it refused to accredit the TWU law school.
Although the decision breached the freedom-of-religion rights of the school and a representative student, the court found that the Ontario regulator had engaged in a reasonable and proportionate balancing of rights.
A unanimous Ontario Court of Appeal dismissed TWU’s appeal.
“TWU simply wants to train trustworthy lawyers,” said Earl Phillips, executive director of the proposed school of law.
If it wins the case, the school could possibly open by September 2019.
The Supreme Court hearing continues and an unprecedented number of interveners, more than 20, have lined up to have a say.