In a landmark ruling, the Supreme Court of Canada has decided that the Law Society of B.C. has the power to deny approval to a proposed law school at Trinity Western University (TWU), on the basis that TWU’s Community Covenant discriminates against LGBTQ people.

Background

TWU is a private Christian university in Langley, B.C. At TWU, all students and faculty must sign a Community Covenant, which is based on Evangelical interpretations of Biblical scripture. The Covenant requires TWU community members to voluntarily abstain from a variety of actions, including “sexual intimacy that violates the sacredness of marriage between a man and a woman”. LGBTQ students may attend TWU but must not engage in sexual activity. Violations of the covenant may lead to disciplinary action, although TWU maintains that no LGBTQ student has ever been expelled on this basis.

The Law Society of B.C. (LSBC) regulates lawyers in the province. As part of that role, LSBC is tasked with protecting the public interest in deciding who can and cannot practice law. Typically, a person who wants to become a lawyer must have a degree from a law school approved by the LSBC before they can be admitted to the Bar.

Six years ago, TWU applied for approval of its proposed law school by all of the provincial Law Societies. In B.C., the governing board of the LSBC, known as “benchers”, put the question to a vote by all practicing lawyers in the province. The majority voted against TWU and the benchers passed a resolution to formally refuse approval of the proposed law school. The Law Societies of Ontario and Nova Scotia also refused approval of TWU’s program.

TWU and a student who wanted to attend TWU’s proposed law school, asked the courts in B.C., Ontario, and Nova Scotia to review the decisions of the Law Societies. They argued that the decision not to approve TWU’s law school violated prospective students’ religious freedom rights protected under the Charter.

The Supreme Court of Canada Ruling

At the Supreme Court of Canada, the majority ruled in favour of the LSBC, finding that TWU’s Covenant discriminates against LGBTQ people based on sexual orientation.

The Court found that Law Societies have wide latitude in interpreting what exactly is in the “public interest” when they regulate the legal profession. The Court stated that part of protecting the public interest includes promoting the Charter values of equality and human rights by ensuring equal access to the legal profession.

The LSBC decided that approving TWU’s proposed law school would effectively impose unequal barriers to attending law school, as the Covenant would prevent LGBTQ people from attending that program. The majority of the Supreme Court found that, as the gatekeeper to the legal profession, the LSBC was entitled to not approve TWU in the public interest of ensuring equal access to the Bar.

The Court also found that, while the LSBC decision to not approve TWU’s program naturally infringed upon TWU students’ religious freedom rights, this infringement was minor. The Court stated that a mandatory Covenant is not absolutely required for Evangelical religious practice. Therefore, the decision to refuse approval to TWU “only prevents prospective students from studying law in their optimal religious learning environment” and does not seriously impact TWU students’ ability to exercise their religious freedom and beliefs.

Conversely, the Court found that approval of TWU’s program would effectively create a law school that would be closed off to the vast majority of LGBTQ individuals on the basis of their sexual identity. Those LGBTQ students that do choose to attend TWU’s law school could suffer harm to their dignity and experience stigmatization and isolation. When the negative effects of the LSBC infringing on these competing Charter rights were weighed, the Court found that the greater harm overall would be to LGBTQ people, if TWU’s program was approved.

The Court concluded that religious freedom can be limited where the religious beliefs or practices have the effect of injuring others. As such, the LSBC’s decision not to approve TWU’s law school was reasonable and constitutional on the basis that “minor limits on religious freedom are often an unavoidable reality of a decision-maker’s pursuit of its statutory mandate in a multicultural and democratic society”.