TWU’s Mandate Conflicts With LSUC’s
Earlier this month, the Divisional Court released its decision in Trinity Western University v The Law Society of Upper Canada, upholding the decision by the law society to refuse to accredit the religious law school based on its Community Covenant that prohibits sexual practices, including homosexuality.
The decision has been highly anticipated given the polarized views in the legal community, especially since the school initiated the accreditation process in Ontario in early 2014. Convocation heard written submissions and oral statements, and ultimately voted 28-21 against accreditation.
Video archives of the debate before Convocation, as well as the written submissions, are available on the LSUC website.
The outcome of this review was uncertain given the opposite conclusion in Trinity Western University v. Nova Scotia Barristers’ Society. The Supreme Court of Nova Scotia sidestepped the conflicting rights between LGBT students and religious freedoms of Evangelical Christians, and focused instead on the legislative authority of the Society under the Legal Profession Act to require law schools to change its policies, following their 10 – 9 vote against accreditation.
The Supreme Court’s new decision in Loyola High School v. Quebec (Attorney General) was also expected to impact this ruling, given the Court’s finding that the Minister of Education’s requirement that a religious high school teach from a neutral perspective did not reflect a proportionate balancing. In that case, the Court stated,
[59] Justice Dickson’s formulation of religious freedom [in R. v. Big M Drug Mart Ltd.] is founded on the idea that no one can be forced to adhere to or refrain from a particular set of religious beliefs. This includes both the individual and collective aspects of religious belief. In the words of Justice LeBel: “Religion is about religious beliefs, but also about religious relationships.”
[60] Religious freedom under the Charter must therefore account for the socially embedded nature of religious belief, and the deep linkages between this belief and its manifestation through communal institutions and traditions. To fail to recognize this dimension of religious belief would be to “effectively denigrate those religions in which more emphasis is placed on communal worship or other communal religious activities.”
[citations omitted, emphasis in the original]
TWU claims their Community Covenant is an essential part of their socially embedded religious beliefs and their collective religious relationships.
TWU also experienced previous success in 2001 on a similar issue involving the same Community Covenant before the SCC in TWU University v. British Columbia College of Teachers (BCCT) for their teacher programs. Although understanding of human rights obligations, as well as the specialized expertise of the parties denying TWU’s accreditation differs, the precedent has provided TWU supporters some sense of invigoration.
Justices Marrocco, Then and Nordheimer began by clarifying the standard of review. They rejected TWU submission, based on the recent SCC decision in Mouvement laïque québécois v. Saguenay (City), that the standard should be one of correctness on the basis that the decision was a general question of law falling outside of the expertise of the law society.
The law society was uniquely qualified to determine its role under the Law Society Act to advance the public interest and promote the rule of law, beyond simply the standards of competence required to practice in Ontario. This would make the law society more like a specialized tribunal, for which the appropriate standard would be one of reasonableness.
The Divisional Court then distinguished the case immediately from the Court’s decision in BCCT,
[60] …The issue raised before the Supreme Court of Canada in BCCT involved different facts, a different statutory regime, and a fundamentally different question.
Even more important, the distinction between lawyers and teachers in the two cases can be highlighted by the limited number of spots for law school students, and the job opportunities for them following. The court referred to the 9,000 Canadian law school applicants in 2013 for only 2,782 positions (4,758 for 1,502 spots in Ontario),
[67] …Consequently, it is clear that, in this case, being eliminated from TWU as a place to attend law school means, for many persons, that their likelihood of gaining acceptance to any law school is decreased. Absent access to a law school, of course, persons cannot pursue a legal education or their dream of becoming a lawyer.
Unlike the BCCT decision, LSUC’s decision not to accredit TWU would not prevent the school from running a law school and become members of the bar in provinces where it has been accredited, including in B.C. where the school is located.
The court also distinguished the Nova Scotia decision based on differences in the enabling statutes for the respective law societies. LSUC has a clear mandate “to maintain and advance the cause of justice and the rule of law” that the Nova Scotia Barrister’s Society does not, and was never directly engaged in legal education the way we have been historically. The jurisdiction question was never an issue in Ontario, and Nova Scotia expressly avoided the issue of discrimination.
Loyola provided TWU a more compelling grounds to claim interference with religion.TWU claimed that the inability to have their graduates accredited in Ontario would result in the inability of the university to operate a law school, as they would effectively be shut out of Canada’s largest economic market.
The Court in Loyola stated that where the lawful character of religious institutions or vitality of religious communities was interfered with, this would be a profound interference with religious freedoms.
Although finding that the failure to accredit did have an effect on religious freedom under s. 2(a), the Divisional Court applied the proportional balancing test found in Doré v. Barreau du Québec. They referred to a 1986 speech by Chief Justice Dickson, where he described law schools as the gatekeepers of the profession who ensure the best candidates are chosen, including minority groups and those from difficult economic circumstances.
Accreditation of TWU would have the effect of creating an exception to all the other schools who provide equal access to all applicants. The appropriate balancing of freedom of religion for those who share a common religious belief with the duty of the law society to protect current and future membership. The court took the effort to highlight some of the measures the law society has taken over the years to reflect changing societal values,
[22] In 1833, the Legislature of Upper Canada abolished the requirement that persons called to the Bar take a religious oath as a qualification for admission to the Bar, thus ending discrimination barring Roman Catholics and non-conformists from entering the legal profession in Upper Canada.
[23] In 1855, a black Ontarian was called to the Bar.
[24] In 1893, the definition of “person” was amended so that women were no longer statutorily excluded from becoming members of the Bar.
[25] In the modern context, the respondent continued this approach by adopting, in 1991, a Statement of Policy in which it affirmed that every member of the respondent has a right to equal treatment with respect to conditions of employment without discrimination because of, inter alia, race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, gender, sexual orientation and marital status. This approach was again affirmed in April 1995, and yet again in 1997.
At para 70, the court noted that attitudes towards LGBTQ persons have changed considerably over the past 15 years, and is one of the most fluid areas of law in modern jurisprudence. Sexual conduct is an integral part of a person’s identity, and cannot be separated from sexual orientation.
At para 104, they noted that although much of the focus of the Community Covenant was on LGBTQ persons, the discrimination applied to women generally, those who prefer to live in a common law relationship, or those who follow other religious beliefs. Even if TWU was to admit those who do not share its beliefs, these individuals would have to engage in deception and openly renounce the beliefs they hold and agree not to practice them.
This would give rise to some significant human rights concerns, and an interest of the law society in protecting historically disadvantaged members.
TWU attempted to exclude itself from scrutiny under the human rights legislation by relying on the exemption clause under s. 41 of B.C.’s Human Rights Code. However, while TWU may be geographically excluded from Ontario’s Human Rights Code, the law society was not, as self-governing professions are explicitly included in s. 6.
The court did comment on the possibility that some individual law graduates from TWU might seek admission in Ontario, and stated that the law society will still have the obligation to evaluate those requests in a fair and timely manner. The standing of these individual applicants is distinct from that of accreditation by TWU, and may have their own rights and accommodations at stake.
Accrediting TWU in Ontario does not create more freedom in society, or foster a more vibrant democracy. It does not enhance our profession, or make us more robust. It takes an already uncertain job market for young lawyers in Ontario, who are already competing against expanded law schools and foreign graduates, and adds more candidates to the mix. We may be the largest market for law school graduates, but it doesn’t mean it should be an open market to all.
TWU accreditation would provide preferential treatment to a specialized subset of a religious community to have access to the legal profession at a time when applications continue to be at an all-time high. In fact, part of the reason for the growth of the foreign law grads is that so many Canadians want to join our fold.
If we have the ability to screen who does enter the profession, that gatekeeping function should certainly be employed in light of our human rights obligations and our professional aspirations, and with a continued view to promote access and equality in society.
“Accrediting TWU in Ontario does not create more freedom in society, or foster a more vibrant democracy. It does not enhance our profession, or make us more robust. It takes an already uncertain job market for young lawyers in Ontario, who are already competing against expanded law schools and foreign graduates, and adds more candidates to the mix.”
How does refusing to accredit TWU “create more freedom in society”? It undeniably reduces the opportunities available to all Canadians to pursue a legal education with a religious focus. Moreover, in doing so it denies opportunities to those gay or lesbian students who (i) would be willing to comply with TWU’s community covenant, or (ii) who might otherwise attend another law school in place of a student who choose to attend TWU. Pervesely, in the name of promoting equal opportunity, the LSUC’s decision reduces opportunities for all. (And, as an aside, it’s a sick joke to suggest that TWU graduates will receive “preferential” access to the profession – do you really believe that its graduates won’t be the last hired in today’s legal market?)
Nor is it clear how denying what is, uncontestably, a unique legal perspective in the Canadian legal education market creates a more “vibrant democracy”. I realize that, in some circles, “Diversity” is a buzzword representing a narrowly defined set of values, such that “diveristy” is only achieved through conformity with those values, the diversity that most Canadians take pride in involves tolerance (if not approval) of a wide variety of, often conflicting, values and belief. Apparently, that isn’t what is meant by “diversity” in the LSUC’s lexicon.
Furthemore, why is the state of the Ontario legal market at all relevant in deciding whether to accredit TWU? Since when is it the role of the LSUC to protect the economic interests of its members (or future members)?
In terms of the substantive decision, I imagine it will be appealed. Three particular points in the Court’s reasoning give rise to obvious vulnerabilities. First, the Court’s effort to distinguish the (much better reasoned) decision from Nova Scotia relying on the requirement that the LSUC “maintain and advance the cause of justice and the rule of law” demonstrates a misreading of that section and an error in law. In the context of the Act it was clearly not the intent of the legislature to give the LSUC a mandate to promote once conception of “justice” (i.e., gay rights) in favour of another (i.e., religious freedom), rather it’s clearly the intent that the LSUC promote “justice” in a more neutral unambiguous sense (i.e., the proper admistration of the law, a nentral, impartial judiciary, etc.). That the court felt the need to stretch the interpretation of that section beyond it’s obvious meaning belies the weakness of its judgement.
Second, the court’s comments on the licensing of TWU graduates raises obvious concerns. It would be one thing for the LSUC to refuse to accredit TWU – notwithstanding the admission that it’s graduates would be competent to practice law in Ontario – if there existed an alternative mechanism by which they could become licensed. There isn’t, and the LSUC has provided no commitment, beyond vague suggestions, to creating such a mechanism. To my mind, on it’s face, that makes the LSUC’s decision unreasonable, in that it creates an insurmountable barrier to would-be TWU students who want to practice in Ontario, notwithstanding that they maybe perfectly qualified to do so. And a vague suggestion that the LSUC may have an obligation to address them doesn’t reduce that barrier. What’s even more remarkable, is that such a mechanism already exists for, say, a graduate of an American religious law school having a similar covenant (namely the NCA mechanism). That makes the bar on TWU students both unreasonable, arbitrary and inconsistent with its practice heretofore.
Finally, in terms of balancing of competing interests, the Nova Scotia court got the exercise right. It’s difficult to see how accrediting TWU harms any legitimate interest (people may be offended by the school, but simply being offended by its existence is not a legitimate interest deserving of protection), in contrast, the denial of accreditation has clearly adverse impacts both on the school and its students.
[99] As a consequence of its approach, the respondent points to the fact that all law schools, that are currently accredited by it, provide equal access to all applicants. No currently accredited law school has any policy that discriminates in terms of who may apply for entry to that law school. TWU seeks to be the sole exception.
I found this paragraph of the decision interesting, when obviously law schools do discriminate as to who they admit, based on a number of factors. If the statement just means that anyone can apply (well anyone who can afford the application fees), that would certainly be the case with TWU as well.
LSAT scores (which introduces a language and cultural bias), GPA, english and french language skills are all openly assessed and judged.
Less obviously but still clearly relevant to admission is age (mature student category) cultural and economic background (through means such as interviews, personal statements/essays), and race and culture (through aboriginal admission programs, scholarship opportunities based on race gender or community membership etc.)
For example U of T’s website includes this Q&A:
Does the Faculty of Law have any special access or special category programs?
Yes, the Faculty of Law has a special application category for Aboriginal applicants. For detailed information see the Aboriginal Applicants section of the admissions web page.
Bob,
I believe TWU itself referenced the Ontario market and the lost opportunity for its graduates, putting the issue squarely in the scrutiny of the court. Law schools everywhere should be institutions which reflect Charter values, and I have no problem refusing accreditation to those that do not.
James,
The simple response to your comment is s. 15(2), programs which are ameliorative in nature. That type of discrimination is not only allowed, but encouraged in Canadian society.
“Law schools everywhere should be institutions which reflect Charter values, and I have no problem refusing accreditation to those that do not.”
Setting aside the question of how true that proposition is (Canadian universities – including those hosting law schools – are largely charter free zones when it comes to free speech. I might be more impressed with the Law Society’s commitment to the Charter if it questioned the accreditation of law schools whose university’s codes of conduct are routinely used to suppress free speech on campus – Ottawa, York, Calgary being some notable, infamous, recent examples), it’s not clear why a university’s commitment to charter values is at all relvant to the function of the LSUC, namely to:
“… to ensure that,
(a) all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide; and
(b) the standards of learning, professional competence and professional conduct for the provision of a particular legal service in a particular area of law apply equally to persons who practise law in Ontario and persons who provide legal services in Ontario.”
It’s clearly not appropriate for the LSUC to accredit/refuse to accredit based solely on whether they agree with the religious/ideological/whatever philosophy of the university (a proposition that can be traced back to Duplessis and the roots of modern Canadian human rights/administrative law), the question should be, are their graduates competent.Anything beyond that constitutes an administrative overreach on the part of the LSUC.
And, as an aside, the notion that the LSUC can refuse to accredit law schools based on its disagreement with the school’s (otherwise legal) values, beliefs, practices, etc. raises real concerns about academic freedom . Will the LSUC deaccredit Calgary and Ottawa over their suppression of dissenting opinions on campus (perfectly legal, mind you, if an affront both to Charter values and the fundamental purpose of the university)? Will it deaccredit Dalhousie for its failure to address the “rape culture” on campus? Why is TWU alone the focus of LSUC’s claim to be able to regulate the administration of law schools?
In response to your comment to James, I’m glad to see that you acknowledge that certain forms of discrimination are allowed in Canadian society. For example, both Ontario and BC human rights law allows private religious insitutions to discriminate in providing services to their particular communities (section 18 of the OHRC and section 41 of the BCHRC). Funny how you seem to be somewhat somewhat, ahem, discriminating, in identifying those forms of permitted discrimination that deserve LSUC sanction.
Bob,
Although courts exert considerable deference to the operation of post-secondary educational institutions, the trend in recent jurisprudence does illustrate they are not entirely immune from Charter scrutiny. See my post on the Pridgen case here (note the limitations of this holding in cases like the recent BC Civil Liberties Association v. University of Victoria).
The same deference exerted to these schools though is also extended to institutions like the law society, especially in upholding their mandate for the public interest. The distinguishing feature in Ontario from Nova Scotia, as detailed above, is a different legislative scheme which actually allows the review of factors above and beyond simple competence.
The TWU decision is decidedly different than Roncarelli v Duplessis, where a government agent (not a regulatory body) exerted his authority in an arbitrary manner and without good faith. LSUC here properly considered the issues and carefully weighed the competing interests. There was no capricious or heavy-headed behaviour here.
More importantly, there is no positive right to have a law school in another province accredited here. Accreditation is a process heavily infused with public policy, and has undergone considerable changes over the years.
The “Special Interest Organization” exception under the Code you refer to are for membership and participation in organizations primarily engaged in serving these special interests. I would assume that TWU’s primary purpose is still to provide education, and their submissions suggest that they intend (even if they are unsuccessful in doing so) to offer these educational programs to persons beyond their religious membership. Even if the Code were applicable here, the exception would not be.
This is all a very different type of discrimination that is allowed, and even encouraged, under s. 15(2) of the Charter.
Omar,
With respect to the exception in the OHRC, as you noted it is available to organizations PRIMARILY engaged in serving their particular community. Notwithstanding that TWU is open to members of all faiths, it is implausible to suggest that a Christian university, established for a religious purpose, does not exist PRIMARILY to serve people who share its beliefs. Indeed, the purpose for the community covenant at issue is precisely to ensure that its students do share their values.
Nor is this discrimination different from that permitted by section 15(2) of the charter. The reason why section 18 of the OHRC or section 41 of the BCHRC exist is that, absent those provisions, the various human rights provisions prohibiting discrimination would be found to be in violation of section 2(a) and (d) of the Charter (indeed, were this not so, they would have been long ago struck down). Clearly any attempt by the government to prevent a religious organization from discriminating in accordance with its faith would violate section 2(a). Indeed, to the extent that there is a difference between the conduct of TWU and the discrimination permitted under section 15(2), it is that the Charter merely PERMITS the latter, but PROTECTS the former.
Finally, I disagree with your reading of the Ontario Law Society Act. Here, the LSUC and the divisional corut have misread section 4.1 and given an inappropriately expansive (and I would suggest partisan) interpertation to section 4.2. On the former points, section 4.1 provides the LSUC with a very limited role, namely ensuring that “persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide”. On its face, section 4.1 provides that the mandate of the law society is to ensure professional competence – not protecting the public interest.
Now, section 4.2 provides that IN PERFORMING its function (of ensuring competence), the law society has a duty to, inter alia, advance the cause of justice and protect the public interest. But this has to be read in context. The duty to to advance the cause of justice should not be read as a duty to advance one particular cause or another, but rather in promoting justice as an abstract concept – indeed, that is inherent in the coupling of “the cause of justice and the rule of law”. Similarly, the duty to advance the “public interest” isn’t an open ended power of the law society to address all matters that its members might consider to be of interest, rather that section has to be read in the context of the functions of the law society in section 4.1. How does refusing to accredit otherwise competent candidates promote the public interest?
While the legislation in Ontario may be different from that in Nova Scotia, I’d suggest to you that the the differences in language, properly interpreted are not substantive. Even without express instruction, there’s no doubt that the NS law society has an obligation to “promote the public interest” in fulfilling its mandate, the NS court however, rightly recognized that that obligation should be read narrowly to a mandate to regulating the legal profession, not purporting to address all the world’ injustices.
Finally, with respect to the application of the Charter to universities – I call your attention to the recent BC case of the BC Civil Liberties Association v. UVic (2015 BCSC 39) which held that the Charter did not apply to the University of Victoria’s decision to deny student facilities to pro-life groups on campus (a common pattern repeated at many universities accross Canada). Can we expect the LSUC to start reviewing the accreditation of the University of Victoria due to its failure to comply with Charter values? Or is the LSUC’s commitment to mandating that law schools comply with Charter values limited to those law schools its members disagree with?
Bob,
The proposition that TWU exists “PRIMARILY to serve people who share its beliefs” only emphasizes the lack of accessibility afforded to this new school by those who do not share its beliefs. Even TWU shied away from such submissions in Ontario.
Section 15(2) and its jurisprudence clearly illustrates that its purpose is not to benefit a historically dominant group that has not experienced disadvantages in society. The record in this case demonstrated that TWU was unable to show any significant discrimination, historically or otherwise, in the existing Canadian law schools.
The interpretation of the Act here is consistent with its historic application. That’s exactly why the court dug so deep into how the law society has operated over the decades. If this was a misreading, its one which generations of benchers, and all those who vote for them, have been making for a very long time.
The UVic case was already referenced by me above. The Charter jurisprudence is not as clear cut as you would suggest.