Canons of Construction

Shad Turner (3L), OUTlaw Alberta

It’s deja vu all over again.

In 2001, the Supreme Court of Canada (SCC) ruled that the BC College of Teachers acted unfairly in “considering the religious precepts of [Trinity Western University (TWU)] instead of the actual impact of these beliefs on the school environment” in its reasons for denying TWU’s application to operate a teacher training program (2001 SCC 31).

In 2012, TWU applied to the Federation of Law Societies of Canada (FLSC) for approval to open a law school in 2015. TWU stated, in its application, that the school would offer specializations in charities and social justice. It argued that “[a] law school that has strategic partnerships with agencies that serve the poor and the oppressed will give students unique opportunities to provide needed legal services to the less privileged.”

Access to legal services, helping the less privileged, social justice. Sounds good, right? So, why have law societies in Ontario, BC, Nova Scotia, and the Northwest Territories voted not to recognize TWU despite the FLSC’s recommendation otherwise?

It has to do with a Community Covenant Agreement that students must sign, requiring them to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.” Breach of this agreement carries disciplinary sanctions, up to expulsion. Some jurisdictions have adopted the FLSC’s approval, whereas others have decided that approving a law school, that requires its students to sign a discriminatory covenant, is not in the public interest.

It should be noted that the story in BC has been breathtaking. In April 2014, the Benchers voted following a vigorous debate to recognize TWU’s law school. The dominant theme of the “yes” side seemed to be that voting otherwise would be contrary to the SCC’s 2001 ruling in favour of TWU.

Upset with this decision, members petitioned the Law Society to reverse its decision. This resulted in a general referendum held among the membership in October, wherein almost 6,000 BC lawyers voted (74% of those who voted) in favour of not recognizing TWU. Days later, the Benchers met and quietly decided to reverse their April decision.

Following the Law Society of Upper Canada’s decision not to recognize the school, TWU has now filed an application in Ontario for judicial review; it could very well do the same in BC and Nova Scotia. (I love the North, but odds are slim that TWU will expend any resources fighting the decision of the Law Society of the NWT.) Most pundits expect this to go all the way to the SCC. TWU, of course, has in its back pocket the top court’s 8–1 decision in its favour from 2001.

Most commentary critical of TWU frames this as a Charter issue. (Think balancing freedom of religion with freedom from discrimination.) Would TWU’s law school discriminate against LGBTQ applicants? Will a lawyer trained at a discriminatory institution be able to respect fully the Charter and human rights legislation? Are some law societies infringing on TWU’s freedom to exercise its religious mission? (Note that TWU, as a private university, is exempted from human rights legislation and the application of the Charter, even though it is a creation of the legislature.)

Despite the blinking signs that this is a Charter and human rights matter, the majority of the SCC in 2001 disposed of the issue wholly on administrative law grounds when it found in favour of TWU. It applied a standard of correctness in reviewing the College of Teachers’ decision, finding the BC Court of Appeal (BCCA) erred in applying a more deferential standard of review.

Then, even though the majority discussed balancing freedom of religion with freedom from discrimination, the SCC concluded that the BCCA decision should be quashed because it acted unfairly in considering too narrowly the human rights issues. There was no substantive human rights or Charter analysis (and certainly no equivalent Oakes consideration).

Justice L’Heureux-Dubé, in a lone dissent, undertook a full Charter analysis. Her dissent was approvingly referred to by a unanimous SCC last year in Whatcott (2013 SCC 11). In that case, the SCC disposed of status/conduct or identity/practice distinctions, stating that “attacks on [sexual] conduct stand as proxy for attacks on the group itself.”

And just as the SCC appears to have evolved in its consideration of sexual activity as a proxy for sexual orientation, there has also been an evolution in the administrative law realm vis-à-vis the Charter. In 2001, the majority stated that the regulatory body was “entitled” to consider the Charter and human rights legislation in deciding whether allowing TWU-trained teachers into public schools would be in the public interest. Fast-forward to Doré, in which Justice Abella, for a unanimous SCC, emphasized that “administrative decisions are always required to consider [Charter] values” (2012 SCC 12).

With these incremental changes in the SCC’s position on discrimination based on sexual orientation, as well as the mandate of administrative decision-makers when considering matters touching on fundamental human rights and values, many are hoping that the SCC will effectively overturn its 2001 decision, or at least distinguish it. Perhaps the SCC will conclude that TWU’s Community Covenant offends Charter and human rights principles, and that law societies must consider the Covenant’s discriminatory effect in deciding whether recognizing TWU graduates is in the public’s best interests.

As former Justice Berger of the BC Supreme Court recently stated in an editorial: “The brooding conscience of the law will be guided by L’Heureux-Dubé’s dissent.” He points out that the SCC’s position on TWU in 2001, which he argues was wrongly decided, need not be a source of discouragement. As a lawyer, he argued the College of Teachers’ case at trial, on appeal, and at the SCC. Mr. Berger asked the top Court whether they would maintain TWU’s discriminatory covenant if TWU “had required students to denounce the Jews or to affirm the inferiority of black people.” (As Berger notes, the SCC did not answer his question.)

What is the Law Society of Alberta’s position? While it recognizes that TWU’s application is controversial, and that College of Teachers is not necessarily determinative, it argues that the national mobility of lawyers is too important to be jeopardized by a patchwork of decisions. Accordingly, it washed its hands of the matter, stating that it had already delegated accreditation matters to the FLSC, and that they “would welcome a judicial determination” to resolve the matter nationally.

For its part, OUTlaw Alberta responded by leading a letter to the Law Society of Alberta in May 2014. In it, we argued: (1) the Law Society improperly and, without authority, delegated discretionary decisions involving Charter and human rights values; (2) Doré requires the Law Society to squarely address the Charter and human rights issues engaged; (3) by subordinating its autonomy to the FLSC, delegating an accreditation decision is not in the public interest; (4) delegating an accreditation decision conflicts with other Law Society goals, including “Public Confidence” and “Principles of Justice”; and (5) delegating this accreditation decision conflicts with the Law Society’s “respect” value in its Strategic Plan, which it defines as “inclusion, diversity and equity in the profession,” and it cannot properly discharge this value without a meaningful consultation process.

There are 13 law societies in Canada, each of which is dealing with the TWU matter in one way or another. Some rhetoric has been ugly, but mostly the commentary has been respectful and insightful. While we await that elusive “judicial determination,” OUTlaw Alberta will keep advocating for LGBTQ students and their allies.