The legal profession is not the most diverse of profession. For the longest time it was reserved for white cis men with enough financial mean to survive legal training. It has slowly opened its door to white cis women (although there are still issues, especially in the private sector). It is still very white and cis-hetero normative however. There are probably many causes for the homogeneity of the legal profession (financial barrier to access the profession, hiring biases in large firms, the image of the profession, etc). The Law Society of Upper Canada (LSUC) is at least currently considering ways to increase diversity in the profession. While the LSUC is far from having control over all the factors affecting diversity, it does have the power to accredit law schools, and law schools are often viewed as the true gatekeepers of the profession. This power is, however, rarely used as new law schools are a rare thing. Trinity Western University (TWU), a private university that caters to evangelical Christians, is the most recent university so seek accreditation. TWU has an infamous covenant that all students are required to sign. This covenant forbids sexual intimacy except between married heterosexual couples. This unsurprisingly shocked many people including benchers (the decision-makers of the LSUC). Accrediting TWU seemed, at the very least, to go against diversifying the legal profession. The LSUC ultimately rejected TWU accreditation because of its discriminatory covenant. A law suit ensued, pitting equality against freedom of religion. Days before Toronto Pride, the Ontario Court of Appeal (ONCA) upheld the decision of the LSUC. In this post, I shortly expose additional background on the case. I then explore the decision’s treatment of the LSUC’s decision making power. I finish by looking at the ONCA’s approach to the balancing of rights.
TWU’s proposed law school has been planned for a while. The first official step was taken in June 2012 when TWU submitted a proposal to the British Columbia Ministry of Advanced Education and to the Federation of Law Societies (the body representing all of Canada’s regulatory bodies governing the legal professions). In December 2013, the proposal was accepted by the Ministry and the Federation. The Federation did not find the covenant to be a bar to accreditation. However, even though the proposal was accepted by those bodies, some individual law societies still needed to accredit the TWU law school in order for its eventual graduate to be able to become lawyers in each province. In early 2014, TWU and members of the public made submissions to the LSUC on the accreditation of TWU’s law school. The LSUC also commissioned three legal opinions (one about its duty pursuant to the Law Society Act, one on the implication of the Canadian Charter of Rights and Freedoms, and one about the relevance of the Human Rights Code). TWU also had a hearing before the benchers and provided written replies to issues raised during the hearing. Many benchers made short speeches in which they expressed their opinions. By a vote of 28-21, the LSUC decided not to accredit TWU. The proposal was also rejected by the law societies of British Columbia and Nova Scotia. TWU sought judicial review of the LSUC decision, but the application was rejected by an eloquent decision of the Divisional Court. TWU appealed that decision to the ONCA.
To win, TWU had to demonstrate that the decision was unreasonable or in other words that it was indefensible given the facts and the law. This implies a degree of deference by the courts to the decision-makers. The ONCA’s role sitting in review was not to second guess the choices made by the LSUC when multiple legally valid choices existed. TWU thus had an uphill battle to begin with. There were two crucial points at issue: the ability of the LSUC to consider the discriminatory effect of TWU’s covenant, and the balancing of rights.
Saying Yes to Diversity: Regulating the Profession in the Public Interest
TWU argued that the Law Society did not have the authority to consider the alleged discriminatory effect of the covenant and should have only considered factors related to the education, competence and ethic of TWU’s future law graduates. The power of the LSUC comes for the Law Society Act, RSO 1990, c L.8. Section 4.1 provides that one of the LSUC’s functions is to ensure that people practicing law in Ontario are competent and meet certain standards. The Act leaves only general guidance on how the LSUC should carry out its functions. Specifically, Paragraph 3 of section 4.2 states that “The Society has a duty to protect the public interest.” The term public interest is left undefined. TWU argued that “public interest” had to be read narrowly and did not involve the broad considerations that lay outside of professional competence.
Unsurprisingly the ONCA did not find TWU arguments convincing. The LSUC is an expert regulatory body. Its interpretation of the Law Society Act is owed deference, especially considering the vague and broad nature of the terms “public interest”. In the words of the Divisional Court, the LSUC is “uniquely qualified to determine how the public interest, as it relates to the regulation of the legal profession in this Province, would be best advanced.” It was therefore within the purview of LSUC to decide that the public interest included the promotion of diversity and equity. In fact, as highlighted by Justice MacPherson, writing for the Court, the LSUC had clearly stated in its various materials that regulating the profession in the public interest included a mandate to promote diversity and equity in its activities, and had in fact a history of removing discriminatory barriers to access to the profession. Furthermore, considering that the Charter and the Human Rights Code are applicable to the LSUC, MacPherson J.A. found entirely appropriate that the LSUC considered the values of those laws in making its decision and interpreting the Act.
In evaluating the reasonableness of the decision, the ONCA also looked at the role of individual Benchers. TWU argued that individual speeches from the Benchers addressing Convocation (the decision-making body composed of the Benchers) demonstrated that the LSUC did not properly balances the rights and interests at stakes as required by the Supreme Court’s decision in Doré. Justice MacPherson rejected the argument stating that in most part, the speeches showed that the Benchers had “engaged in a fair balancing of the conflicting rights.” He also stated that the speeches shouldn’t be treated as court reasons. As a (mainly) elected body, like a municipal council, the LSUC reasons are more than the views of individual elected officials; they comprise instead of the entire record gathered through a process qualified by MacPherson J.A. has excellent which included things such as the three commissioned legal advice, TWU application, the debates, and public submissions. The fact that some Benchers did not explicitly use the Doré framework in their short speeches did not prove that the decision as a whole was unreasonable.
Human Rights and Administrative Decision-makers: Reasonable Balancing
TWU’s main argument was that the decision to reject their accreditation was a violation of their freedom of religion. Refusing to accredit TWU’s law school because of the covenant meant that TWU and hypothetical future students would either not benefit from a legal education inside an evangelical Christian community or would have to abandon the covenant. A law student, who ended up studying elsewhere, stated he would have preferred to study at TWU because of his religious convictions. Both he and TWU additionally affirmed that the covenant reflected an important part of their faith. TWU also tried to rely on TWU v BC College of Teachers, in which the Supreme Court found that the College violated TWU right to freedom of religion by refusing to approve its education training program.
The ONCA first dealt with TWU v BC College of Teachers. It dismissed the argument by highlighting the crucial difference between the College’s case and the LSUC’s. In TWU v BC College of Teachers, the College had claimed that the covenant would make the future teachers discriminate against LGBTQ students. In this case, the LSUC was not claiming that the covenant would result in lawyers who discriminate; it claimed that the covenant acted as a barrier for LGBTQ students who would not be able to reasonably access TWU’s law program.
The ONCA then turned its mind to the reasonableness of the LSUC’s balancing exercise of the rights and objective at play in the case. Since the Court was working within the administrative law framework, the normal Charter test did not apply.
“On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play.”
The first step was to determine if a Charter violation occurred, specifically TWU’s freedom of religion. The Court had to be satisfied that TWU’s belief is sincere and that TWU’s ability to act in accordance with its belief was interfered with in a non-trivial manner. The first criterion was easily satisfied since it was obvious that TWU’s beliefs were sincere. The second was more challenging as the LSUC’s decision did not compel TWU to act in a certain manner. It did not prevent students from studying law at TWU. The law graduate of TWU would simply not be able to practice law in Ontario. TWU claimed that since Ontario is the largest market for law graduates, it could not open its law school without the LSUC’s accreditation. Justice MacPherson rejected this argument, but accepted that the LSUC’s decision imposed an indirect burden on TWU’s right since the non-accreditation could discourage prospective law students from attending TWU. The infringement, while not the most serious, was not insignificant.
The second step was the balancing of TWU’s freedom of religion, and of the LSUC’s objective to promote diversity and regulate the profession in the public interest. This analysis is aimed at ensuring that state action impairs individual rights as little as reasonably possible given the objectives at play and the particular context. The test is thus more flexible than the traditional section 1 proportionality test of the Charter. Given the case, the focus of the balancing was on TWU’s freedom of religion and on LGBTQ law students’ equality right under both the Charter and the Human Rights Code. The Court therefore needed to determine if TWU, through its covenant, discriminates against LGBTQ people. This is not to say that the LSUC or the Courts imposed obligations on TWU that it did not have under BC law (TWU is not subject to the Charter or the BC Human Rights Code); it is the LSUC that had the obligation, in this case, to ensure non-discriminatory access to the profession. MacPherson J.A. had no problem finding the covenant discriminatory: “My conclusion is a simple one: the part of TWU’s Community Covenant in issue in this appeal is deeply discriminatory to the LGBTQ community, and it hurts.” As state by the Divisional Court:
“This reality [signing the covenant in order to attend TWU] is of particular importance for LGBTQ persons because, in order to attend TWU, they must sign a document in which they agree to essentially 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. Contrary to the contention of the applicants, that requiring person[s] to refrain from such acts does not intrude on the rights of LGBTQ persons, it is accepted that sexual conduct is an integral part of a person’s very identity. One cannot be divorced from the other.”
MacPherson J.A. underlined the distinction between institutions teaching according to religious belief and those with discriminatory policies such as TWU. He also emphasised the fact that TWU was seeking to obtain a public benefit, which does not have the same consequences as a prohibition or a direct action against TWU’s religious belief. Additionally, he looked at the American jurisprudence which considers the eradication discrimination in education a compelling government interest, and at international human rights law which state that freedom of religion can be limited by the fundamental rights of others. The Court found in the end that the LSUC’s balancing was reasonable because the decision of the LSUC did not directly prevent TWU from exercising its belief (it could still open its law school), the covenant was clearly discriminatory, and the LSUC acted in the public interest based on legitimate concerns falling within its statutory objective.
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Both the ONCA and the Divisional Court’s decisions represents the proper application of contemporary administrative law doctrine, a doctrine that gives broad interpretative power to expert regulatory bodies like the LSUC. I find it hard to imagine how the LSUC’s interpretation could have been found unreasonable. The ONCA decision thus preserves the ability of the Benchers to debate important issues without fear that their words can be used to discredit decisions of the LSUC. More importantly, the ONCA decision ensures that the LSUC has the power to adapt to a changing world. Had the courts accepted TWU’s narrow interpretation of “public interest”, the LSUC would have lost all power to consider anything beyond what the Federations of Law Societies usually considers, making the regulatory body somewhat redundant in terms of law school accreditation. Thankfully, the ONCA gave its seal of approval, at least indirectly, to the LSUC’s diversity policy. The profession needs to diversify if it wants to represent the population as a whole and thus keep its legitimacy. Ensuring non-discriminatory access to legal education is an important step for diversity in the profession, and while much still needs to be done, the ONCA decision sends the message that diversity is part of the LSUC’s function.
The balancing exercise in the two TWU v LSUC decisions is of interest for at least two reasons. First, not only is it one of the most articulate application of Doré, the context was also different from other balancing cases à la Doré since the State’s objective, through the LSUC, involved the rights of another segment of the population. This case was more akin to conflicts of rights cases than the cases when individual rights conflict with broader state objectives like ensuring the civility of lawyers, or promoting respect for others and openness to diversity. It is another manifestation of the tension that can exist between individual freedoms and equality. It is sometime necessary to limit religious and expressive freedoms in order to protect minorities. It is exactly what the LSUC did in this case, and given the minimal impact on religious freedom (evangelical Christians can still go to law school, and TWU can still open its own law school) it is hard to see how a Court would find the LSUC balancing unreasonable.
Second, the ONCA made strong findings regarding the covenant’s discriminatory effect. While the Supreme Court had already stated that the covenant was clearly exclusionary, the ONCA and the Divisional Court went further and found the covenant discriminatory using strong and unequivocal language. The courts rejected TWU’s argument that it didn’t discriminate because LGBTQ students were still welcomed … as long as they didn’t have sex or got married. In doing so, they rejected the “hate the sin, not the sinner” argument (as many courts and tribunals did before) and emphasised the fact that sexual orientation and sexuality are intrinsically linked. Focussing on an act that is core to one’s sexual orientation is clearly a disguised way to discriminate. Nevertheless, the courts were ruling on the reasonableness of the decision through an administrative law framework, and it is probable that they would have upheld the accreditation of TWU by the LSUC. It is of course impossible to predict this hypothetical, but given the strong finding of discrimination, the public interest nature of ensuring equal access to the profession, and the limited impact of refusing accreditation on TWU religious rights, it is possible that the only reasonable outcome in this case was to reject accreditation. Regardless, the decision of the ONCA is a victory for equality and diversity. TWU may be able to discriminate legally in British Columbia, but this does not shield TWU’s discriminatory acts from all negative consequences.
 E.g. Micheal Tutton, Canada’s shortage of non-white judges creates ‘an obvious gap’, CBC News, 19 July 2016; and Nabila Pirani, Tear Down This Wall: Reflections of a 3L on Diversity and Belonging, Ultravires, 31 March 2016.
 These decisions were also challenged. The Courts found in favour of TWU (Trinity Western University v The Law Society of British Columbia, 2015 BCSC 2326; and The Nova Scotia Barristers’ Society v Trinity Western University, 2016 NSCA 59). The appeal in BC is ongoing.
 TWU v LSUC, ibid at para 72.
 TWU v LSUC (Div Ct), supra note 4 at para 37.
 TWU v LSUC, supra note 2 at para 106-109. See also TWU v LSUC (Div Ct), ibid, at para 95-98.
 Supra note 5.
 TWU v LSUC, supra note 2 at para 124-125.
 TWU v LSUC, supra note 2 at para 57-58.
 Doré, supra note 5 at para 57.
 TWU v LSUC, supra note 2 at para 90.
 Ibid at para 98-99.
 Loyola High School, supra note 17 at para 40-42.
 TWU v LSUC, supra note 2 at para 133; and TWU v LSUC (Div Ct), supra note 4 at para 115-119.
 TWU v LSUC, supra note 2 at para 119.
 TWU v LSUC (Div Ct), supra note 4 at para 113; see also para 104-114; TWU v LSUC, supra note 2 at para 118; and TWU v BC College of Teachers, supra note 14 at para 25.
 TWU v LSUC, supra note 2 at para 136-139.
 Ibid, at para 132.
 The diversity policy of the LSUC seems particularly à propos considering the new Supreme Court judges selection criteria (which one can assume will be used, to the extent they are applicable, in all future judicial appointments): see s 8(f) of the Terms of Reference Independent Advisory Board for Supreme Court of Canada Judicial Appointments, http://www.fja-cmf.gc.ca/scc-csc/mandate-mandat-eng.html; see also Lorne Sossin’s post.
 See TWU v LSUC (Div Ct), supra note 4 at para 123.