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,
 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.”
 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,
 …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),
 …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,
 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.
 In 1855, a black Ontarian was called to the Bar.
 In 1893, the definition of “person” was amended so that women were no longer statutorily excluded from becoming members of the Bar.
 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.