Can religious universities discriminate? TWU and #LGBTQ rights #canpoli

LGBTQ rights and religious freedoms continue to collide in Canadian law. On June 29 2016, the Ontario Court of Appeal released its much-anticipated decision in Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518.

Trinity Western is the latest in a string of decisions from senior courts to remind us that freedom cannot be purchased with the currency of discrimination.

Background

Trinity Western University (“TWU”) is an evangelical university in BC. In 2012, it applied to open a law school. As part of the university’s commitment of Christian values, TWU requires its students to sign a Community Covenant which, among other things, forbids homosexual students from sexual intimacy, on pain of discipline and possible expulsion. TWU does not, however, ban LGBTQ students and it further prohibits harassment on its campus.

So that its students could practice law, TWU applied to provincial law societies for accreditation, including an application to Ontario’s Law Society of Upper Canada (LSUC).

In April 2014, after a lengthy process of consultation and input, LSUC denied accreditation to TWU by a vote of 28-21, with one abstention. The LSUC argued that it is contrary to the public interest to accredit a law school that discriminates against a category of persons protected by human rights law.

TWU applied to the Divisional Court for judicial review but lost, and then appealed to the Ontario Court of Appeal.

Does the Law Society have jurisdiction to comply with the Canadian Charter?

The Court followed earlier decisions to the effect that administrative tribunals are required to consider and act consistently with Charter values when making decisions that are within their mandate. Put another way, as long as the administrative tribunal (a decision-maker that is not a court) is making the types of decisions that it is legally authorized to make, balancing Charter rights and values is part and parcel of its responsibilities. Here, the LSUC’s accreditation decision, which took into account Charter rights and values, was determined to be within the LSUC’s expertise.

Was the refusal to accredit unreasonable?

Generally speaking, when seeking the judicial review of a decision that is within the mandate of the administrative decision maker, courts use a standard of reasonableness. The test of that standard is set out in decisions of the Supreme Court of Canada called Dunsmuir [Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190)] and Ryan (see below)

A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere ( Law Society of New Brunswick v. Ryan, 2003 5CC 20,
[2003] 1 S.C.R. 247).

The appellants sought to position freedom of religion in a quasi-absolute manner, arguing in effect that considerations of equality could play little if any role in balancing equality and non-discrimination rights on the one hand with freedom of religion on the other. The Court of Appeal properly rejected that argument, noting that when the LSUC refused accreditation, by balancing the rights and freedoms of all the parties in a proportionate manner, its decision was inherently reasonable in the sense that it led to a tenable conclusion.

A Broad Definition of Freedom of Religion

The Court set out the steps involved in determine whether freedom of religion has been triggered as a Charter right.

1. The person or organization has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and
2. He or she is sincere in his or her belief.

Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, at para. 56



The Law Society of Upper Canada’s mandate

The LSUC has a legal duty to protect the “public interest” under the Law Society Act. The Court found that this means that the public has “access to quality and reliable legal services, and that the public retains trust in the legal community.” Quality in legal education includes merit, and merits is based on non-discrimination and the removal of barriers to equal access to the profession.

The Court had not hesitation in finding that TWU’s admission policy, along with the Community Covenant, discriminates against the LGBTQ community based on both the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code, both of which protect equality rights on the grounds of sexual orientation. The Court of Appeal noted with approval the following excerpt from the Divisional Court’s earlier decision in the case (at para 117).

The only other apparent option for prospective students, who do not share TWU’s religious beliefs, but who still desire to obtain one of its coveted law school spots, is to engage in an active deception, in terms of their true beliefs and their true identity, with dire consequences if their deception is discovered. TWU’s technically correct statement that it “does not ban or prohibit admission” to LGBTQ students must be read and understood in this context.

The Court of Appeal  also rejected a similar argument that had been attempted by some of the same litigants from the 2013 decision of the Supreme Court in Whatcott that all that was being rejected was homosexual conduct and not homosexuality. The Court have short shrift to this argument, recalling Rothstein’s words from Whatcott:

…there is a strong connection between sexual orientation and sexual conduct. Where the conduct that is the target of speech is a crucial aspect of the identity of the vulnerable group, attacks on this conduct stand as a proxy for attacks on the group itself. Saskatchewan (Human Rights Commission) v.
Whatcott
, [2013] 1 S.C.R. 467, at para. 124:

By seeking accreditation, TWU was requesting access to a public benefit using criteria that the Court found to be deeply discriminatory, since the Community  Covenant effectively denied access to a group of persons based on sexual ordination. 

Recalling the obligations of lawyers and the legal profession generally, the Court reminded us all that it is incumbent upon those involved in the admission process to ensure equality of admissions in the light of equality of opportunity to a profession that already has many social and economic barriers to entry.

The appeal was dismissed unanimously.

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Categories: Civil Liberties, Discrimination, Education, Religious freedoms

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