No Judicial Review: Trinity Loses Bid to Force Accreditation

TWU President Bob Kuhn. Photo: twu.ca

TWU President Bob Kuhn. Photo: twu.ca

The Law Society of Upper Canada (LSUC) cannot be compelled to adopt a world view that includes discrimination.

So found the Divisional Court today, in denying a Judicial Review application brought by a controversial proposed faith-based law school. Trinity Western University (TWU) sought to overturn the Law Society’s decision not to accredit its graduates, accusing the LSUC of overstepped its jurisdiction and infringed on its students’ religious freedoms.

TWU has its students sign a “Community Covenant.” Court found the covenant compels Trinity students to ” bury a crucial component of their very identity, by forsaking any form of intimacy with those persons with whom they would wish to form a relationship.”

“The effect of the Community Covenant is to exclude certain persons from eligibility for all of the spaces available at TWU’s law school. That reduces their opportunities for acceptance to law school in comparison with all other persons, and it does so on a discriminatory basis.”
~ Trinity Western University v. The Law Society of Upper Canada
The case, Trinity Western University v. The Law Society of Upper Canada, 2015 ONSC 4250, had been heard over four days in June. TWU challenged LSUC’s decision not to accredit the proposed law school, a decision made after two days of public debate last spring. The decision not to accredit (28–21, with one abstention) represents a “proportionate balancing” of Charter rights. Divisional Court found:

    “In exercising its mandate to advance the cause of justice, to maintain the rule of law, and to act in the public interest, the respondent was entitled to balance the applicants’ rights to freedom of religion with the equality rights of its future members, who include members from two historically disadvantaged minorities (LGBTQ persons and women). It was entitled to consider the impact on those equality rights of accrediting TWU’s law school, and thereby appear to give recognition and approval to institutional discrimination against those same minorities. Condoning discrimination can be ever much as harmful as the act of discrimination itself.

    “The respondent was also entitled, in the exercise of its statutory authority, to refuse to accredit TWU’s law school arising from the discriminatory nature of the Community Covenant. It remains the fact that TWU can hold and promote its beliefs without acting in a manner that coerces others into forsaking their true beliefs in order to have an equal opportunity to a legal education. It is at that point that the right to freedom of religion must yield… “

The decision notes that denying accreditation does not preclude TWU from opening a law school, or from opening a law school that requires students to sign the Community Covenant. Justices Marrocco, Then and Nordheimer found that “the motivating force not to open the law school appears to be more economic than it is religious” and that “freedom of religion cannot be used as a mechanism to compel state support.”

    LSUC’s Mandate Includes Advancing Justice

Law associations across Canada have reached varying decisions on TWU accreditation, for different reasons and based on differing principles. Today’s decision notes different governing statutes and their effects on court challenges by both TWU and human rights organizations. LSUC has specific broad statutory authority under its governing statute. This includes a mandate “to maintain and advance the cause of justice and the rule of law” and a degree of control over legal education requirements for admission to the provincial bar.

In seeking to balance competing rights through its statutory authority, the Law Society “arrived at a reasonable conclusion” today’s decision held. Convocation’s close vote against accreditation in April 2014 “does not mean that, just because more Benchers favoured one approach over the other, the result equates to the imposition of some form of “majoritarian tyranny” on the minority, as the applicants contend.”

Court referred to the debates, which were webcast and included a session open to the public. “In determining whether a proportionate balancing was undertaken, it is only fair, in our view, to consider the interchange between the Benchers, not whether the individual speeches of each Bencher reflect that balance. In that regard, it is important to remember that the Benchers were speaking in reaction to what others had said, including what TWU itself had said. They were not speaking in a vacuum.”

While Trinity had suggested in court documents that its law school could not succeed unless the LSUC decision was overturned, its fate remains up in the air. Court noted that any individual graduates of a TWU law school would be entitled to “accommodation” and proper consideration for admission to the Ontario bar, “to ensure that the religious rights of any graduate of TWU’s law school are minimally impaired.”

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