Toronto, ON June 15, 2018 – The Catholic Civil Rights League (CCRL) notes the irony in today’s majority decision. A proposed Christian law school, with a stated emphasis to educate lawyers in the charitable and non-profit sectors, has been denied accreditation of its graduates by two provincial law societies. The court’s ruling limits diversity of legal education options of a previously approved law school, by expanding the notion of a public interest test over enumerated grounds for religious freedom in the Charter.
And while 8 of 9 judges recognized an infringement of TWU’s rights to religious freedom, the 7-2 majority found that the law societies were “justified” in making a “balanced” decision not to accredit the previously approved law school.
In effect, the Supreme Court has allowed the non-accreditation of a single proposed Christian law school, which proposed to add 60 new spaces for potential law students to gain entry to the profession, on the basis that it imposed an “inequitable barrier on entry to the profession”, without explaining how any existing available law school spaces were affected.
The minority decision is highly critical of the majority. The decision of the law societies should have been focused on whether proposed graduates met competence and ethical standards, for which there was no issue. The reliance on a referendum to make decisions affecting constitutionally protected rights needed the further explanation or treatment by the law society benchers, which was not provided. Amorphous and undefined Charter “values” cannot be seen as overruling what two judges described as a profound interference with TWU’s religious freedoms, and was contrary to the state’s duty of religious neutrality. The decision of the law societies was substantively coercive in nature.
The broader implications of the SCC’s decision will cast a pall on the future interface between religious viewpoints and state engagements in the public square. Questions will now be raised on continued or future access to state benefits, public funding, or government approvals of available programs.
While members of the majority expressed statements that their ruling was based on the importance of the public perception of legal practitioners and the means to becoming a lawyer, today’s ruling will provide a launching pad for future attacks on the continued access of religious organizations to public benefits.
The case concerned TWU’s institutional religious freedom and decisions by the provincial law societies in Ontario and British Columbia that voted not to accredit future TWU law school graduates.
In June, 2012, TWU sought approval for its proposed law school with the joint Federation of the Law Societies of Canada and the BC Ministry of Advanced Education. Despite opposition from several sources, the Federation gave its approval in December, 2013 on the basis that the proposal met the required academic qualifications, and further stated that there was “no public interest reason” to exclude future TWU law school graduates.
Most provincial law societies provided accreditation of the TWU program. However, three law societies, in Nova Scotia, British Columbia, and Ontario ultimately denied accreditation. Court challenges followed, ultimately leading to the Supreme Court hearings.
The point of contention from the law societies was the TWU Community Covenant, which required that students commit themselves to a set of behaviours, including a shared understanding that sexual relations be reserved to a man and woman within the confines of a biblical understanding of marriage, in accordance with the Evangelical Christian beliefs of the institution.
Numerous interveners participated in the cases at all levels. The CCRL and Faith and Freedom Alliance (FFA), in conjunction with the Archdiocese of Vancouver, submitted throughout its involvement in three provinces, and ultimately before the Supreme Court of Canada, of the importance, and recognition, of authentic pluralism, meaning that Canadian law and society is comprised of differing viewpoints, and dissentient views should not be excluded from participation in the public square. The proposed TWU law school was an expression of such authentic pluralism, by providing a dedicated Christian approach to law and to the future practice of lawyers pursuant to shared faith commitments.
In summary, the 7-2 majority found that the concerns of the law societies on the public interest, and in particular, the concern over access to the legal profession, were justified in denying accreditation of future TWU law school graduates.
This court recently ruled that private institutions were not otherwise subject to the Charter (Wall v. Highwood). The difference here was TWU’s sought accreditation from the various provincial law societies, which are delegated statutory authorities to self-regulate the profession.
In our view, today’s decision is a distressing example of same-sex and gender viewpoints trumping enumerated Charter rights.
In brief, we are seeing the continued diminished acceptance of religious viewpoints in the public square, in favour of a civic totalism, where dissenting viewpoints are pushed to the margins.
It remains to be seen whether TWU will seek to pursue its law school program on some different basis, or the response of B.C.’s government to the TWU law school going forward.
But the implications for religious freedoms, and for the status of religious institutions in accessing public benefits, has been seriously altered by today’s decision.
We have warned in the past that the position the court will take on Trinity Western will have serious implications on provincial education rights, the position of Catholic or private schools, or the status of religious charities.
During the hearings, the various law societies downplayed such concerns. However, it was made explicit in the submissions of certain activists, including the Canadian Bar Association, that the “logical implication” of refusing accreditation of TWU was that religious charities would soon face future pressures to abandon religious positions in favour of the demands of gender, gay, lesbian, or trans activists, in order to retain the benefit of charitable status.
With the minority decision today, we continue to maintain that our constitutional system recognizes differences of views, rather than imposing a majoritarian viewpoint when it comes to religion or religious institutions in the public square. The approach by the state actors in this case, being the Law Societies in Ontario and British Columbia, to deny accreditation of the proposed Trinity Western law school, or its future graduates, represents a denial of dissentient religious viewpoints.
As expressed by the 5-0 decision of the British Columbia Court of Appeal, a majoritarian, or civic totalist approach, is quite illiberal in its application. The Supreme Court majority today has stated otherwise, by suggesting that the law societies here were “balanced” in their assessments.
We maintain that Trinity Western, or other religious institutions, such as the Catholic Church, are entitled to maintain their respective religious views, including positions on marriage and gender, and should not be the subject of prejudice, or exclusion of state benefits, for maintaining such views.
The implications for Catholics and Catholic institutions in the fields of education and healthcare are unknown. We must not be compelled to have our teachings suppressed as a requirement for participation in the public square. The further implications of this ruling need to be opposed.
About the CCRL
Catholic Civil Rights League (CCRL) (www.ccrl.ca) assists in creating conditions within which Catholic teachings can be better understood, cooperates with other organizations in defending civil rights in Canada, and opposes defamation and discrimination against Catholics on the basis of their beliefs. The CCRL was founded in 1985 as an independent lay organization with a large nationwide membership base. The CCRL is a Canadian non-profit organization entirely supported by the generosity of its members.
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For further information:
Christian Domenic Elia, PhD
CCRL Executive Director