LSUC benchers voted in April 2014 not to accredit the law school proposed by TWU, a British Columbia-based evangelical Christian university, because of its community covenant that asks students to refrain from “sexual intimacy that violates the sacredness of marriage between a man and a woman,” a stipulation critics argue is discriminatory against LGBTQ individuals. But the university appealed to Divisional Court for a judicial review of the law society’s decision.
The three-person Divisional Court panel, however, agreed that TWU’s policy was discriminatory.
“The effect of the Community Covenant is to exclude certain persons from eligibility for all of the spaces available at TWU’s law school,” Thursday’s ruling states. “That reduces their opportunities for acceptance to law school in comparison with all other persons, and it does so on a discriminatory basis.”
A key element of TWU’s case was a precedent the university argued was set in the 2001 Supreme Court of Canada ruling Trinity Western University v. British Columbia College of Teachers.
In that ruling, the Supreme Court reversed a decision by the B.C. College of Teachers not to accredit the university’s teacher training program. According to the court, there was no evidence the university’s graduates would be more likely to act in a discriminatory way while teaching students.
This Divisional Court panel, consisting of Associate Chief Justice Frank Marrocco, and justices Edward Then and Ian Nordheimer, ruled this case involved “different facts, a different statutory regime, and a fundamentally different question.”
The College of Teachers, according to the panel, was mandated solely to “the setting of standards for the education, professional responsibility and competence of its members,” whereas LSUC’s mandate is wider, involving “a much broader spectrum of considerations with respect to the public interest.”
The decision also states, the evidence in the earlier case did not show that anyone had actually been denied admission to the university’s teacher’s program because they had refused to sign a document like the community covenant.
In reaching its decision, the Divisional Court had to decide whether the LSUC properly weighed a balance of Charter rights.
“On one side, there is the right of the applicants to freedom of religion including their right to operate a law school designed for persons who share a common religious belief,” says the ruling. “On the other side, there are the rights of the members of the respondent, both current and future, to equal access, on a merit basis, to membership that the respondent, consistent with its history, has a duty to protect.”
To attend the law school, TWU students “must sign a document in which they agree to essentially bury a crucial component of their very identity” since “it is accepted that sexual conduct is an integral part of a person’s very identity,” it says.
But the LSUC’s decision not to accredit TWU’s law school has less of an impact on religious rights than it does on the university’s ability to make money, the judges ruled.
Refusing accreditation to the school, the decision states, “does not, in fact, preclude TWU from opening a law school,” despite TWU’s argument that it would not open the school without accreditation from LSUC, and “while . . . there is a degree of interference with religious beliefs, should that result occur . . . the motivating force not to open the law school appears to be more economic than it is religious.
“What TWU would then be essentially saying is that it not only wishes to operate its law school in a particular way in order to advance its religious beliefs, but that it will only do so if it is guaranteed access to the single largest market for law school graduates.”
Douglas Judson, director of Out on Bay Street, an LGBTQ advocacy group that intervened in the case, hails the decision.
“It reflects a number of the things we’ve been saying on this matter all along,” he says. For example, “that there’s no real reasonable religious entitlement to only be educated in the company of people who share your religious beliefs, and that sort of objective wouldn’t outweigh the equality entitlement of LGBTQ people to have access to legal practice.
“As you can imagine, we’re optimistic about where this ends up,” he says. “I don’t anticipate that the issue is completely over or resolved at this stage, but this is obviously a very positive signal from the court.”
LSUC Treasurer Janet Minor says she hopes the ruling will influence other cases involving the law school now underway in Nova Scotia and British Columbia.
“We would be hopeful that they would look at this as a strong decision to take into account, but it’s not binding on other provinces.”
In a news release, TWU said it planned to appeal the decision as soon as possible.
“The Court’s finding that there has been a breach of religious freedom rights in this case is critically important,” said TWU spokesman Guy Saffold. “The court’s ultimate decision against TWU is starkly at odds with the Supreme Court of Canada’s 2001 decision directing approval of TWU’s teacher education program. It points a knife at the freedom of faith communities across Canada to hold and practise their beliefs.”