Balancing statutory objectives with Charter protections
Most lawyers in BC are familiar with the history of Trinity Western University’s (“TWU”) pursuit of a law school. In 2013, the Federation of Law Societies of Canada approved TWU, a privately funded evangelical Christian university, as meeting requirements for a Canadian common law degree program. This resulted in TWU’s program becoming an “approved” faculty for the purposes of the Law Society of British Columbia (“LSBC”) rules – unless the Benchers adopted a resolution declaring otherwise.
Throughout 2014, the LSBC wrestled with the question of whether TWU’s mandatory “Community Covenant” that, among other things, prohibited “sexual intimacy that violates the sacredness of marriage between a man and a woman” meant that its program should not be approved.
In an October 2014 referendum, LSBC members voted to implement a resolution that TWU’s program was not an approved faculty of law. The Benchers passed a resolution accepting the results of the referendum and declaring that TWU’s law school was not approved.
The case moved through three levels of court over the next four years. In June 2018, the Supreme Court of Canada (“SCC”) upheld the LSBC’s decision.
The LSBC’s process and decision raised a number of administrative law issues, articulated by the SCC as:
- Was LSBC entitled under its enabling statute to consider TWU’s admissions policies and to hold a referendum of its members in deciding whether to approve the law school?;
- Did the LSBC decision limit a Charter protection; and, if so
- Did the decision reflect a proportionate balance of Charter and statutory objectives?
The courts below focused largely on the first question, both finding that with the referendum LSBC inappropriately fettered its discretion, and in failing to provide reasons for its decision had not engaged in an appropriate balancing of the interests.
In contrast, the SCC spent much more time considering the issue of proportionate balancing.
By a 7-2 margin, the SCC found that, given the broad public interest mandate found in the Legal Professions Act, the LSBC was entitled to consider TWU’s admissions policies, and to hold a referendum of its members on the issue. Further, the majority held that the LSBC was not required to give reasons as it was clear from the process that the Benchers were “alive to the question.” The majority found it could assess the reasonableness of their decision by looking to the record as a whole.
Having made these findings, the focus of the SCC’s reasons was on the last two questions. All but one justice found that the LSBC decision limited freedom of religion. Seven of the justices (in three decisions) held that it reflected a proportionate balance of the Charter and the statutory objectives.
If an administrative decision engages the Charter by limiting its protections, the issue becomes whether the decision reflects a proportionate balancing of the Charter protections and the statutory mandate. The majority of the court found that, although the decision did limit freedom of religion, it did not do so to a significant extent. Further, the decision advanced the LSBC’s statutory objectives by maintaining equal access to, and the diversity of, the legal profession; and preventing the risk of significant harm to LGBTQ individuals.
In contrast, the two dissenting justices found a significant impact on freedom of religion and, on the basis of a much narrower view of the LSBC’s statutory objectives, would have found that the decision did not strike an appropriate balance.
What happens next is unclear. The majority of the SCC was clear that they were considering the issue in the context of TWU’s mandatory Covenant. The Covenant is no longer mandatory as of the 2018-2019 academic year. Will TWU reapply for a law school? Will the outcome be different? Only time will tell.
Tonie Beharrell is in-house legal counsel to the Health Sciences Association of BC, and head of its legal department.