Legal societies in three provinces opposed accrediting Trinity Western University’s School of Law due to their Christian community covenant.
by Ian Mulgrew in The Vancouver Sun
In a stinging rebuke of the legal profession’s governing body, the B.C. Court of Appeal said the regulators abrogated their responsibilities and acted unreasonably — infringing the school’s right to freedom of religion and associative rights.
“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,” concludes the 66-page unanimous decision signed by Chief Justice Robert Bauman and four other justices.
The court upheld the B.C. Supreme Court ruling that the law society had not given the Langley-based Evangelical institution a fair shake in rejecting its proposal to open a law school.
In July, the Nova Scotia Court of Appeal similarly repudiated that province’s barristers’ society for the way it dealt with the proposed law school and the clash between freedom of religion and sexual discrimination.
Only in Ontario has a provincial appellate bench supported the manner in which the charter rights were balanced.
The Law Society of Upper Canada’s refusal to accredit the school was endorsed by the Ontario courts who said: “The part of TWU’s community covenant in issue in this appeal is deeply discriminatory to the LGBTQ community, and it hurts.”
The school said it was seeking to appeal that decision to the Supreme Court of Canada.
TWU first proposed the law school in June 2012 and was later granted preliminary approval by the Federation of Law Society of Canada and the B.C. Ministry of Advanced Education.
Law societies in the three provinces, however, opposed accrediting the school because of the university’s controversial Bible-inspired community covenant that staff and students must sign.
Although members of the lesbian, gay, bisexual, transgender and queer communities are welcome to apply to TWU, they cannot attend without signing the creed that prohibits sexual intimacy except between heterosexual married couples.
The school, founded in 1962 and made a degree-granting institution in 1979, insists it doesn’t go looking for violations of that code, but discipline for breaking it can include expulsion.
In B.C., the law society originally endorsed the law school but that decision triggered a backlash among lawyers standing up for the rights of those who identify as LGBTQ.
As a result the law society conducted a referendum Oct. 29, 2014 and a majority of the lawyers who voted rejected the TWU proposal.
The benchers accepted that outcome on Oct. 31 and the minister of advanced education as a result revoked his consent for the school.
TWU appealed and the B.C. Supreme Court found that the benchers acted improperly.
Chief Justice Christopher Hinkson said the benchers delegated their authority and failed to do their job under the Legal Profession Act.
The society infringed the school’s freedom of religion and “allowed the members to dictate,” he said.
In a complicated reasoning process, the court of appeal disagreed with some of Hinkson’s ruling but not the thrust of it — that the benchers “abdicated their duty.”
“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,” the appeal judges said.
“In making their Oct. 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.”
They added: “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 …
“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.”
The case is expected to be ultimately decided by the Supreme Court of Canada, whose view would prevail across the nation.
Legal regulators in Alberta, Saskatchewan, Manitoba, New Brunswick, Prince Edward Island and Newfoundland and Labrador have gone along with the TWU proposal.