Trinity Western University’s Litigation to Open a Law School

Can an evangelical university open a law school while stipulating that every member of the student body, faculty and staff sign a pledge not to conduct themselves contrary to biblical teachings for the duration of their studies or employ? SCC: It cannot.

Trinity Western University’s Litigation  to Open a Law School

Say “law” and “education” in the same sentence and you might start a conversation about the cost of legal education, induce spasms of suppressed memories about a bad mark, or end up talking about the increasing number of law schools in Canada while student articling positions remain few in number. Not long ago, the Supreme Court of Canada (“SCC”) came down 7 – 2 against opening another law school as proposed. One could not have missed mention of it: The Trinity Western University (“TWU”) case.

The hearing took place late last year and a pair of judgments were delivered six months later. Why so compelling? The case involved, in broad strokes, Christian belief versus LGBTQ acceptance, a strenuous exercising of legal reasoning and interpretation, and here was a case of Charter rights arguably in direct conflict and what kind of democracy are we?

Can an evangelical university open a law school while stipulating that every member of the student body, faculty and staff sign a pledge not to conduct themselves contrary to biblical teachings for the duration of their studies or employ? SCC: It cannot. Can a potentially approving bar society really consider the admissions policy of a proposed law school? SCC: It can.

Far from a consensus judgment composed by “The Court,” this was 155 pages of reasons in four separate decisions. The majority of five found the interference with TWU’s religious freedom to be not that significant while Chief Justice MacLachlin (as she then was) – concurring in the result – found it to be severe. Justice Rowe found no Charter right interference at all, saying that TWU did not have a sincere belief that the Community Covenant was required by their religion.

The majority found that deference was owed under the Doré/Loyola framework to the administrative decision maker here, the bar societies of BC and Ontario. They also found that the bar societies, working for the reputation of the law and in the public interest, could withhold approval of a law school with this mandatory Covenant, found to be discriminatory toward LGBTQ people. “This deference properly reflects legislative intent, acknowledges the law society’s institutional expertise, follows from the breadth of the ‘public interest,’ and promotes the independence of the bar,” they wrote.

The dissenting justices (Côté and Brown) found that not that much deference was owed to the bar societies according to their governing statutes. They also argued that Canadians would not perceive the bar societies as condoning the discrimination of TWU’s Covenant; this worry was misplaced.

As for the BC Supreme Court’s finding – upheld by the Court of Appeal – that the referendum ultimately precipitated by the bar society members (after the Benchers voted to approve TWU’s law school) could not, and did not, appropriately weigh the Charter rights in question, the majority swept this aside. The fact that the Benchers announced that they would be bound by the referendum results of what ended up being 8039 mail-in ballots (5951 against approving TWU’s law school and 2088 in favour) did not negate due consideration of Charter protections. The Benchers were entitled to seek guidance from the entire membership and they were not required to give reasons. The dissenting justices said that the BC bar society Benchers binding themselves to the results of a referendum of members was a violation of their statutory duty in addressing a Charter claim.

A month after the SCC judgments were released, TWU announced that signing the Community Covenant would no longer be mandatory for incoming students, though it will remain so for faculty and staff.

TWU may yet get a law school.