The Onward March of TWU: Next Step The Court of Appeal

The Ontario Divisional Court rejected Trinity Western University’s (TWU) judicial review application to overturn the decision of the Law Society of Upper Canada (LSUC).[1]  LSUC refused to accredit the proposed TWU law school because the school would require students to sign a Community Covenant committing them to live in harmony with the school’s religious teaching on marriage as between one man and one woman.  LSUC’s decision against accreditation was made despite TWU receiving approval from the Federation of the Canadian Law Societies; and the fact that TWU is a private religious university, exempt from B.C. human rights legislation; and a 2001 decision of the Supreme Court of Canada that rejected similar arguments of the BC College of Teachers who refused to accredit TWU’s education degree.

The Divisional Court held that though the religious freedom of TWU was infringed, LSUC’s decision was justified because it was reasonable to take into consideration the discriminatory nature of TWU’s admissions policy when deciding to accredit the proposed school.  However, Court did say that LSUC “will be duty bound to properly consider” the individual accreditation requests of TWU graduates to ensure their religious rights are minimally impaired.  (Para. 128)

While this may appear to be a major step back for Trinity’s law school, it is really one step toward the ultimate decision to be handed down, eventually, by the Supreme Court of Canada.  TWU has already announced that it will be appealing the decision[2] at the Ontario Court of Appeal.  Among the interesting issues to watch on the appeal are these:

The Democratic Imperative

The Divisional Court’s decision made no mention of the recent statements from the Supreme Court of Canada about the “democratic imperative.”  That imperative is “the pursuit of an ideal: a free and democratic society”.[3]  The state is required to “encourage everyone to participate freely in public life regardless of their beliefs.”[4]  The state has no business to create “a preferential public space that favours certain religious groups and is hostile to others.”[5]

The question for the Court of Appeal will be, “Is the Divisional Court’s decision one that is in keeping with the democratic imperative?”

Many commentators suggest that when religious institutions are involved in the “public sphere” they must remove their religious scruples and adopt the public norms.  Their argument suggests that in the case of a religious university wanting a law school, it must be willing to put aside its religious practise to get public accreditation.

The Divisional Court appears to have adopted the view that the state can have a preferential view on religious beliefs and, based on that view, refuse to accredit religious institutions.  The Court said TWU cannot compel the Law Society to accredit its law school “and thus lend [the Law Society’s] tacit approval to the institutional discrimination….”  (Para. 115) Because, says the court, that would mean that “TWU could compel the [LSUC], directly or indirectly, to adopt the world view that TWU espouses.”  (Para. 115)  That is a telling statement of the Court and is out of place with the recent comments of the Supreme Court. The Supreme Court says the state cannot take sides on religious matters – it must be neutral.  It cannot deny a service to a citizen because it disagrees with that citizen’s worldview.  Herein lays bare what is at issue in this case.  It is a matter of competing “worldviews”.  The Divisional Court appears to be saying that if the Law Society does not like TWU’s worldview on marriage, then it can deny accreditation.  That is simply unjust.  No state actor should hold back on its public duty on the basis of differences on issues of “worldviews.”   The Supreme Court’s Saguenay[6] decision stated unequivocally that the state must be neutral on religious beliefs.  The SCC said,

By expressing no preference, the state ensures that it preserves a neutral public space that is free of discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally, given that everyone is valued equally. I note that a neutral public space does not mean the homogenization of private players in that space. Neutrality is required of institutions and the state, not individuals (see R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 31 and 50‑51). On the contrary, a neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect every person’s freedom and dignity. The neutrality of the public space therefore helps preserve and promote the multicultural nature of Canadian society enshrined in s. 27  of the Canadian Charter . Section 27  requires that the state’s duty of neutrality be interpreted not only in a manner consistent with the protective objectives of the Canadian Charter , but also with a view to promoting and enhancing diversity….[7]

Note the following:  TWU is the only religious law school in the country; its religious practise is to support marriage as  betweenone man and one woman.  That religious belief and practise is not against public policy but protected by the Charter.  Indeed, in 2005, the Marriage Act[8] was passed with this prescient clause, “WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage.”

It will be interesting to see how the Court of Appeal deals with the “democratic imperative.”

The Right of Religious Institutions To Self-Determination

The Divisional Court took issue with the term “discrimination”.  It noted that the belief system of TWU does discriminate and rejected TWU’s argument that it was not discriminating.  There is a difference of opinion about what is and is not acceptable discrimination.  This is something the Court of Appeal will have to address.  In essence, it is a right of self-determination of its internal rules.

The fact remains the discrimination practised by TWU is a “lawful” discrimination.  The university is not for everyone as the Supreme Court of Canada noted in 2001 and stated,

That said, the admissions policy of TWU alone is not in itself sufficient to establish discrimination as it is understood in our s. 15 jurisprudence.  It is important to note that this is a private institution that is exempted, in part, from the British Columbia human rights legislation and to which the Charter does not apply.  To state that the voluntary adoption of a code of conduct based on a person’s own religious beliefs, in a private institution, is sufficient to engage s. 15  would be inconsistent with freedom of conscience and religion, which co-exist with the right to equality. [9]

The Divisional Court takes umbrage at TWU’s position “To assert that that result [to attend TWU means to disavow one’s beliefs and, for LGBTQ, their identity] is not, at its core, discriminatory is to turn a blind eye to the true impact and effect of the Community Covenant.” (Para. 106)  Such umbrage is not only directed at TWU but at the very reasoning of the Supreme Court of Canada’s decision of 2001.  Indeed, the Divisional Court makes a frontal attack at that 2001 decision when it states that:

First, discrimination is still discrimination, regardless of whether it is unlawful… (Para. 108)

Second, the fact that the Community Covenant may promote an important right, that is, the observance of a particular religious belief, does not mean, by virtue of that itself, that the effect of the Community Covenant is not discriminatory (par. 109)

Third, while TWU may not be subject to the Ontario Human Rights Code, the [LSUC] is. (Para.110)

Further, the Divisional Court was not impressed by TWU’s position that it treats everyone with fairness, courtesy and open-mindedness. Such “does not change the fact that notwithstanding TWU’s stated benevolent approach…in order for persons, who do not hold the beliefs that TWU espouses, to attend TWU, they must openly, and contractually, renounce those beliefs or, at the very least, agree not to practise them.  The only other option … is to engage in an active deception…with dire consequences if their deception is discovered.”  (Para 112)

Unfortunately, the Divisional Court’s discomfort with the TWU Community Covenant is a discomfort with the entire religious institutional reality.  From one end of this country to the other we have religious institutions that have established rules of admission based upon religious beliefs and practises.  Just as the Court noted that “sexual conduct is an integral part of a person’s very identity” so too are the religious beliefs and actions of a person.  The challenge made by the Divisional Court on the internal administration of TWU is, in reality, an attack on the very idea of religious community and their institutions.

The Court of Appeal will have to decide whether a religious institution can continue to have the right of making its own internal rules that govern the moral and ethical ethos of its operations.

The Religious Freedom To Have A University

The Divisional Court expressed reservations about whether evangelical Christians should have a right to claim protection of religious freedom for religious beliefs and practises that are not mandatory.  Here is what the Court said:

“There is no evidence before us that the ability of an evangelical Christian to gain a legal education requires that they study at a law school that only permits the presence of evangelical Christian beliefs and only permits the attendance of those persons who commit to those beliefs.  Indeed, the contrary would appear to be obvious from the fact that evangelical Christians have been attending secular law schools, and successfully becoming lawyers, for decades, if not longer.”  (Para. 78)

That is a very troubling rationale.   First, the Divisional Court appears to have misunderstood TWU’s position.  It is not that evangelical Christians are required to study law at a Christian law school.  Rather, it is that they choose to do so.  Second, the Divisional Court appears to be directly at odds with the Amselem decision[10] of the Supreme Court of Canada where the Court stated,

Consequently, both obligatory as well as voluntary expressions of faith should be protected under the Quebec (and the Canadian) Charter.  It is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection.  An inquiry into the mandatory nature of an alleged religious practice is not only inappropriate, it is plagued with difficulties.[11]

“Plagued with difficulties” is an apt description of this reasoning by the Divisional Court.  To limit religious freedom by saying in essence “that since law schools are not required by the evangelical Christian community it is therefore not something to be protected under the Charter,” is to totally ignore the Charter right of religious freedom.

In the end, the Divisional Court did not allow this rationale to deny protection under s. 2(a) of the Charter but it nevertheless reveals an analysis that is, to say the least, troubling.  We will watch with interest how the Court of Appeal deals with the religious freedom claim of a community to operate a law school.

Conclusion

The Divisional Court took a very radical approach, quite different from the decision of Justice Jamie S. Campbell[12] (whom the Ontario Division Court referred to as “a judge in Nova Scotia”).  The Ontario decision has called into question the right of a religious institution to determine its own internal operations in accordance with its religious beliefs and practises.  This is a cause of concern for the Canadian Council of Christian Charities.  As an umbrella group of 3,300 charities across the country, the right of our community to operate within a religious ethos is foundational and must be preserved.

Religious freedom of religious institutions is at stake in this case.  When one considers the fact that TWU is now fighting on multiple legal fronts on virtually the same issues it fought over about 15 years ago, we cannot but conclude that this is a fight for justice that is bigger than the sum of the parts.  It remains a challenge to establish the right for all religious institutions to determine for themselves how they ought to operate while being faithful to their religious ideals.

The Divisional Court’s decision may appear to be a step backward, but in the grand scheme of things, it is a march forward to the ultimate tribunal at the Supreme Court of Canada, which will ultimately determine whether its 2001 decision, that respected the rights of religious institutions, continues to be good law.

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[1] Trinity Western University v. The Law Society of Upper Canada  2010 ONSC 4250, dated 2015-07-02.

[2] http://www.twu.ca/news/2015/035-lsuc-decision.html

[3] Mouvement laïque québécois v. Saguenay, at para. 75.

[4] Mouvement laïque québécois v. Saguenay, at para. 75.

[5] Mouvement laïque québécois v. Saguenay, at para. 75.

[6] Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16

[7] Mouvement laïque québécois v. Saguenay, at para. 74.

[8] Civil Marriage Act, S.C. 2005, c. 33, Assented to 2005-07-20.  Online:  http://laws-lois.justice.gc.ca/eng/acts/c-31.5/page-1.html

[9] Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31 at paragraph 25:

TWU is not for everybody; it is designed to address the needs of people who share a number of religious convictions.   That said, the admissions policy of TWU alone is not in itself sufficient to establish discrimination as it is understood in our s. 15  jurisprudence.  It is important to note that this is a private institution that is exempted, in part, from the British Columbia human rights legislation and to which the Charter  does not apply.  To state that the voluntary adoption of a code of conduct based on a person’s own religious beliefs, in a private institution, is sufficient to engage s. 15  would be inconsistent with freedom of conscience and religion, which co-exist with the right to equality.

[10] Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47

[11] Syndicat Northcrest v. Amselem, at para. 47.

[12] Trinity Western University v. Nova Scotia Barristers’ Society,  2015 NSSC 25

http://decisions.courts.ns.ca/nsc/nssc/en/100659/1/document.do