The Supreme Court of Canada has handed down judgments in Law Society of British Columbia v Trinity Western University 2018 SCC 32 and Trinity Western University v Law Society of Upper Canada 2018 SCC 33.
Readers will recall that the two Law Societies had declared that they would not license graduates from Trinity Western Law School to practise because the University requires all students to agree when they register to abide by a so-called “community covenant” that, inter alia, prohibits sexual activity outside heterosexual marriage. The two societies concluded that the covenant amounted to discrimination.
The Court of Appeal for Ontario upheld the position of the Law Society of Upper Canada, while the British Columbia Court of Appeal found in favour of Trinity Western, on the grounds that the Law Society of BC had acted unreasonably by infringing the Law School’s right to freedom of religion and that it had imposed its views on a minority “in a manner that is in itself intolerant and illiberal.”
By seven votes to two, the Supreme Court ruled against Trinity Western in both judgments, holding that the decisions of the two societies not to approve TWU’s proposed law school represented a proportionate balance between the limitation on the religious protections under s.2(a) of the Charter of Rights and Freedoms and their statutory objectives. .
As to the Law Society of British Columbia [‘LSBC’], it was entitled under its enabling statute to consider Trinity Western’s admissions policies, apart from the academic qualifications and competence of individual graduates, in determining whether to approve TWU’s proposed law school under Rule 2‑27 of the Law Society Rules. Its enabling statute required the Benchers to consider the overarching objective of upholding and protecting the public interest in the administration of justice in determining the requirements for admission to the profession, including whether or not to approve a particular law school. As the governing body of a self‑regulating profession, its interpretation of how to further its broad public interest mandate was entitled to deference. “The public interest” was a broad concept and what it required would depend on the particular context.
“The LSBC in this case interpreted its duty to uphold and protect the public interest as precluding the approval of TWU’s proposed law school because the requirement that students sign the Covenant as a condition of admission effectively imposes inequitable barriers on entry to the school and ultimately, inequitable barriers on entry to the profession. It was reasonable for the LSBC to conclude that promoting equality by ensuring equal access to the legal profession, supporting diversity within the bar, and preventing harm to LGBTQ law students were valid means to pursue the public interest. The LSBC has an overarching interest in protecting the values of equality and human rights in carrying out its functions. Approving or facilitating inequitable barriers to the profession could undermine public confidence in the LSBC’s ability to regulate in the public interest.”
Similar considerations applied to the decision of the Law Society of Upper Canada.