On June 15, in a 7-2 ruling, the Canadian Supreme Court found that the law societies of British Columbia and Ontario have the power to refuse to accredit law school graduates of Trinity Western University because the Christian school’s community covenant binds students to a code of conduct, that among other things, includes abstaining from sex outside of heterosexual marriage. The Court found that the religious rights of TWU were violated but that doing so was a “proportionate and reasonable” limit on religious freedom because it advances the Charter value of diversity, in this case access to LGBT students.
The majority claimed the covenant would deter LGBT students from applying to TWU’s law school and those who did attend may be caused harm by the community covenant.
The Court also said that law societies were acting within their mandate to uphold a positive public perception of the legal profession. Five of the seven in the majority, signed onto a ruling saying, “Limiting access to membership in the legal profession on the basis of personal characteristics, unrelated to merit, is inherently inimical to the integrity of the legal profession.
In 2012, TWU announced it was opening a law school and the B.C., Ontario, and Nova Scotia law societies refused to accredit its graduates. TWU challenged the law societies’ decisions and the cases have made their way through the provincial courts. The B.C. Court of Appeal had ruled 5-0 that the B.C. Law Society could not refuse accreditation to TWU, saying that religious freedom was at stake, while considerations of equality were comparatively minor. However, the Ontario Court of Appeal ruled 3-0, called the covenant degrading. Both rulings were appealed and the case was heard by the Supreme Court last November.
Two judges dissented from the majority. Russell Brown and Suzanne Cote found, “the unequal access resulting from the Covenant is a function of religious freedom, which itself advances the public interest by promoting diversity in a liberal, pluralist society.” They said students who do not want to agree to the community covenant could apply to dozens of other law schools in Canada, or go abroad for their legal education.
Howard Anglin, executive director of the Canadian Constitution Foundation, said, “the effect of the decision is to water down Charter protections; it will make it harder for individuals to challenge bureaucratic violations of their fundamental rights.” He explained that this goes beyond religious freedom. As the Court invoked not actual Charter rights, but the more amorphous Charter values, and promoted them as at least equal to the enumerated Charter rights, Anglin said “it could just as easily be freedom of speech or expression in a future case.”
