Trinity Western v. Law Society – TWO NIL
Someone – and it’s apparently not clear who – coined the phrase, “the road to hell is paved with good intentions.” But it goes back a long way. Regardless, the phrase makes a point often forgotten or ignored.
The Law Society got in wrong in denying Trinity Western University (“TWU”), a small private Christian university, its approval to set up at law school. The BC Minister of Advanced Education had granted approval and the Federation of Law Societies of Canada (the “Federation”) had granted preliminary approval.
In April 2014, the Benchers of the Law Society initially defeated a motion that TWU was not an approved law school. Subsequently, the Benchers arranged for a “referendum” among the membership, which voted overwhelmingly in favour of denying approved status to TWU. The sticky point was that TWU’s “Covenant recognizes the marriage of heterosexual couples only; expressions of sexual intimacy between same-sex married couples remain prohibited. It is in this respect that LGBTQ persons are treated unequally.” In October 2014, the Benchers met and adopted the outcome of the referendum.
A number of provincial law societies accepted the approval of the Federation. Notably, the Law Society of Upper Canada, a.k.a. Ontario, did not. In Nova Scotia the courts decided in favour of approval; in Ontario, the Court of Appeal upheld the Law Society’s decision not to grant approval: the “decision not to accredit TWU fell squarely within its statutory mandate to act in the public interest.”
In BC, The Chief Justice found that the procedures followed by the Law Society in reaching its decision were improper and quashed the decision on administrative law grounds, including fettering of discretion. The BC Court of Appeal agreed and was not “convinced that the Benchers acted properly in passing a resolution to the effect that, regardless of the results of the referendum, following those results would be consistent with their statutory duties.” However, the Court of Appeal was of the opinion that matter could not be decided without addressing the Charter issues raised by the parties:
“[85] In making their October 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
The Appeal Court turned to the question of Charter rights and noted:
“[133] The balancing exercise that Doré and Loyola call for in the case before us can be expressed this way: did the decision of the Law Society not to approve TWU’s faculty of law interfere with freedom of religion of at least the faculty and students of that institution no more than is necessary given the statutory objectives of the Law Society?”
[134] … the question is: did the Law Society navigate it?
The Law Society did not “navigate it.” In letting “democracy rule,” the Benchers “abdicated their duty as an administrative decision-maker to properly balance the objectives of the Legal Profession Act with the Charter rights at stake.”
The Court of Appeal noted: “although the decision of the Law Society not to approve TWU’s law school is therefore not entitled to deference, we must decide whether it nonetheless represents a reasonable balancing of statutory objectives and Charter rights.”
The Court set out the basic principles:
“[164] First, while the rights identified by the Law Society and its allied intervenors are significant and deserve protection and encouragement to flourish in a progressive society, respectfully, the starting premise cannot be that they trump the fundamental religious freedom rights advanced by TWU. The Charter does not create a hierarchy of rights with some to be treated as more important than others: Gosselin (Tutor of) v. Quebec (Attorney General), 2005 SCC 15 (CanLII) at para. 26.
[165] Second, the Charter rights we have described must be considered and balanced against the statutory objectives of the Law Society, here the “public interest in the administration of justice” and “preserving and protecting the rights and freedoms of all persons”: s. 3(a) of the Legal Profession Act. Acting in “the public interest” does not mean making a decision with which most members of the profession or public would agree.
[166] Third, the balancing exercise goes beyond simply considering the competing rights engaged and choosing to give greater effect to one or the other, with either course of action being equally reasonable. Rather, the nature and degree of the detrimental impact of the statutory decision on the rights engaged must be considered. The robust proportionality test called for in Doré requires no less.” [Emphasis added]
The Court found that the impact on TWU and its graduates would be severe. Its graduates would not be able to practice law in the province. The decision by the Law Society resulted in the revocation of the ministerial approval. While the Court recognized that the impact on LGBTQ community, “it is incontrovertible that refusing to recognize the TWU faculty will not enhance accessibility.” However, “in reality very few LGBTQ students would wish to apply to study in such an environment, even without the Covenant.” Thus the number of seats available would remain the same. Regulatory approval does not amount to endorsement of the TWU’s beliefs:
“[187] As the Court noted in Loyola at para. 43, “a secular state does not — and cannot — interfere with the beliefs or practices of a religious group unless they conflict with or harm overriding public interests.”
It was argued that the approval by the Law Society would constitute an “approval” of TWU’s religious principles. This might be “hurtful” to the LGBTQ community. The Court noted that “there is no Charter or other legal right to be free from views that offend and contradict an individual’s strongly held beliefs, absent the kind of “hate speech” described in Whatcott that could incite harm against others (see paras. 82, 89-90 and 111). Disagreement and discomfort with the views of others is unavoidable in a free and democratic society.”
“[189] Indeed, it was evident in the case before us that the language of “offense and hurt” is not helpful in balancing competing rights. The beliefs expressed by some Benchers and members of the Law Society that the evangelical Christian community’s view of marriage is “abhorrent”, “archaic” and “hypocritical” would no doubt be deeply offensive and hurtful to members of that community.”
The appeal was dismissed.
One of the troubling issues is the Law Society’s “majoritarian” approach to Charter rights. Another is the apparent, or at least it seems that way – and I am just a member of the Law Society and have no insight into the deliberations of the high and mighty Benchers – lack of consideration of the value of free speech, or, perhaps, the choice to follow the easy path “political correctness” – the LGBTQ community over the religious TWU community.
As an individual one may well disagree with TWU’s views, in so far as an institution does hold views, and its Covenant. I for one would disagree with views expressed in the Covenant. However, agreement (or lack of agreement) misses the point. We are all richer for the divergent opinions in society, including the views of, for example, TWU graduates, were they indeed to hold the views set out in the Covenant, even if such views could be described as “archaic,” “hypocritical” and “hurtful.”
The point is that the silencing of opinions robs humanity, now and in the future, as John Stuart Mill wrote long time ago. Free, open and vigorous discussion and debate challenges the “wrong” opinions and, indeed, strengthens the “right” or “true” ones. Even the “right” or “true” opinions benefit from the exchange, or they may become dogma or formal professions. The position of the Law Society, with respect, should be strong in favour of the protection of free speech.
Perhaps, John Stuart Mill’s classical work “On Liberty” ought to be provided to the Benchers.